UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


\ 


TEXAS  ^Rsus  WHITE 


A  STUDY  IN  LEGAL  HISTORY 


BY 


WILLIAM  WHATLEY  PIERSON,  JR. 

INSTRUCTOR  IN  HISTORY 
UNIVERSITY  OF  NORTH   CAROLINA 


TEXAS  versus  WHITE 


A  STUDY  IN  LEGAL  HISTORY 


By  WILLIAM  WHATLEY  PIERSON,  Jr. 

INSTRUCTOR   IN   HISTORY 
UNIVERSITY  OF  NORTH   CAROLINA 


Submitted  in  Partial  Fulfilment  of  the  Requirements  for  the 

Degree  of  Doctor  of  Philosophy  in  the  Faculty 

of  Political  Science  of  Columbia 

University 


I  hiui  \M,    N.   C. 

The  See. man   Pr inter y 

1916 


t     • 

*  •  • 


*     -     • 

:  >: 


.♦         •         •    .    . 


•--  .'.  .      •     »■- 


»     ~  ■ 

•  « .' 


•  • 


JK- 


'  .         r         7— 


To 
My  Mother  and  Father 


PREFATORY  NOTE 

The  following  study  of  the  case  of  Texas  v.  White  and 
Chiles  et  als.  is  the  result  of  investigations  begun  in  1912  for 
a  seminar  paper  in  American  History  at  Columbia  University. 
At  the  suggestion  of  Professor  William  A.  Dunning  and  urged 
by  his  own  feeling  that  there  was  a  place  for  an  extended 
study  of  the  great  case,  the  writer  expanded  and  amplified 
those  preliminary  investigations.  A  large  part  of  the  present 
essay  was  published  in  1915  in  the  Southwestern  Historical 
Quarterly,  and  is  now  reproduced  through  the  courtesy  of  the 
editors  of  the  publication.  For  the  purpose  of  its  present 
form,  however,  it  has  been  subjected  to  thorough  revision  and 
has  been  somewhat  enlarged. 

In  large  part,  the  monograph  deals  with  certain  aspects 
of  American  political  theory,  about  which  there  has  been  and 
is  much  bitter  controversy.  In  view  of  this  fact,  he  admits 
feeling  some  hesitancy  in  submitting  the  section  on  "The 
Location  of  Sovereignty  in  the  United  States."  While  this 
section  is  presented  as  setting  forth  the  ideas  and  theory  of 
the  court,  it  is  but  right  to  say  that  in  the  writer's  conception 
this  theory  is  the  best  explanation  of  the  Union.  If  the  essay 
may  serve  to  throw  more  light  upon  this  theory,  it  shall  have 
largely  achieved  its  purpose.  It  is  doubtless  unnecessary  to 
disavow  any  intention  of  theorizing  or  speculating  about  the 
nature  of  sovereignty. 

The  writer  has  been  greatly  aided  by  the  suggestions  and 
comments  of  friends  to  whom  he  returns  sincere  thanks.  To 
the  officers  in  the  library  of  the  Supreme  Court  his  thanks  are 
due  for  many  courtesies.  In  particular,  he  wishes  to  express 
his  sincere  gratitude  to  Professor  Eugene  C  Barker,  of  the 
I  Hiversity  of  Texas,  for  his  painstaking  and  critical  reading 
of  the  manuscript  of  the  earlier  article  and  for  his  editorial 
suggestions,  llis  thanks  are  given  also  to  Professor  Chas. 
\V.  Ramsdell  who  read  the  manuscript  and  made  many  helpful 
suggestions.      He    is    under    heavy    obligation    to    Dr.    L.    R. 


6  Prefatory  Note 

Wilson,  of  the  University  of  North  Carolina,  for  many  sug- 
gestions as  to  form.  To  his  friend  and  colleague,  Professor 
J.  G.  de  Roulhac  Hamilton,  his  sincere  thanks  are  given  for 
much  sympathetic  advice,  encouragement,  and  valued  assist- 
ance. His  aid  was  particularly  appreciated  in  making  the 
estimate  of  the  change  and  revolution  which  occurred  in  1789, 
respecting  the  framing  and  adoption  of  the  Constitution.  The 
writer  wishes,  above  all,  however,  to  make  grateful  acknowl- 
edgment of  indebtedness  to  Professor  William  A.  Dunning,  to 
whose  inspiration,  guidance,  and  criticism  is  largely  attributable 
whatever  of  merit  the  monograph  possesses. 

Chapel  Hill,  N.  C,  1915. 


TABLE  OF  CONTENTS 


PAGE 

Introduction    9 

CHAPTER  I 

History  of  the  Case 11 

The  Texas  Indemnity  Bonds 11 

Secession  of  Texas 15 

The  State   Military  Board  and   the   Disposal  of  the 

Bonds    17 

Restoration  and  Reconstruction  of  Texas 21 

Transfers  of  Bonds  from  White  and  Chiles 28 

CHAPTER  II 

The  Argument  of  the  Lawyers 32 

CHAPTER  III 

The  Opinion  of  the  Court 40 

The  Question  of  Authority 40 

The   Question   of   Jurisdiction 41 

1.  The  American  State 41 

2.  The  Location  of  Sovereignty  in  the  United  States  47 

The  Court's  Theory   47 

Application  of  Theory 50 

3.  The  Contract  Theory  and  Secession 57 

4.  The  Consequences  of  Rebellion 64 

5.  Restoration  and  Reconstruction 66 

The  Matter  of  the  Injunction 76 

The  Effect  of  the  Payment  by  the  Treasury 80 

The   Dissenting  Opinions 80 

The   Decree    84 


8  Table  of  Contents 

CHAPTER  IV 

Subsequent  Litigation  86 

Texas   v.    Hardenberg 86 

Texas  v.  Chiles 87 

In  Re  Paschal 88 

Huntington  v.  Texas 94 

Texas  v.  The  National  Bank  of  Washington 96 

In  Re  Chiles 98 

CHAPTER  V 

Bibliography    101 


INTRODUCTION 

The  case  of  Texas  v.  White  is  of  interest  and  importance 
from  the  standpoint  of  Texas  history,  of  constitutional  law, 
and  of  American  political  theory.  In  this  paper,  attention  will 
be  directed  to  these  three  aspects.  Except  the  report  in  which 
the  history  of  the  case  has  been  briefly  sketched,  such  a  treat- 
ment has  not,  so  far  as  I  know,  been  yet  attempted.1  The  case 
is  of  value  at  present,  in  addition  to  its  historical  and  legal  sig- 
nificance, because  in  the  opinion  of  the  court  is  embodied  the 
theory  of  the  nature  of  the  Union  last  professed  by  the  judicial 
department  of  our  government.  It  compels  the  attention, 
therefore,  of  those  who  would  understand  the  political  theory 
upon  which  our  present  American  system  legally  rests. 

One  of  the  many  problems  arising  for  solution  out  of  the 
great  War  of  Secession  was  that  of  the  determination  of  the 
legal  status  of  the  so-called  rebel  States.  The  gravity  of  this 
question  was  early  appreciated,  and,  as  soon  as  the  outcome 
of  the  struggle  was  fairly  evident,  the  political  leaders  began 
serious  consideration  of  its  various  aspects.  The  theory  an- 
nounced by  Mr.  Lincoln  at  his  inauguration,  to  which  he  ad- 
hered throughout  the  war,  for  many  reasons  no  longer  satis- 
fied the  large  element  of  radicals  in  the  North.  As  a  partial 
expression  of  this  discontent,  Sumner,  in  1862,  had  submitted 
his  State-suicide  theory.2  The  break  with  the  executive  in 
this  regard  had  seriously  disturbed  the  political  relations  with- 
in the  dominant  party  in  1864  and  had  in  part  caused  the  Fre- 
mont movement  which  was  for  a  time  so  formidable  as  to  en- 
danger the  reelection  of  Lincoln ;  and  after  the  war,  when  the 
evolution  and  application  of  a  definite  programme  became  an 
actual  and  pressing  necessity,  the  points  of  difference  in  the 
opinions  and  desires  of  the  various  groups  became  more 
noticeable  and  important.  Concerning  the  proper  course  to 
follow   in   restoring  the   Southern   States  to  the   Union — and 


'7  Wallace,  700;  25  Texas  (Supplement)   Reports. 

2  Dunning,  Essays  on  the  Civil  War  and  Reconstruction,  105. 


10  Introduction 

each  course  proposed  necessitated  the  formulation  of  a  theory- 
respecting  the  status  of  those  States — the  departments  of  the 
government  developed  theories,  which  in  many  essential  par- 
ticulars were  radically  different  from  one  another.3  Despite  the 
fact  that  during  a  large  part  of  the  Reconstruction  period,  the 
executive  and  judicial  departments  suffered  in  prestige  and 
power  from  the  extraordinary  ascendancy  of  Congress,  the 
views  presented  therein  form  an  important  contribution  to 
American  political  theory.  The  theory  of  the  judicial  depart- 
ment was  submitted  by  the  Supreme  Court  in  the  opinion  in 
the  case  of  Texas  v.  White,  and  a  consideration  of  it  in  that 
regard,  therefore,  is  a  part  of  the  purpose  for  which  this  paper 
was  written. 


3  For  critical  and  incisive  analysis  of  the  various  theories  respecting 
the  status  of  the  Southern  States,  see  Dunning,  Essays  on  the  Civil 
War  and  Reconstruction,  103  ct  seq. 


TEXAS  versus  WHITE 
A  STUDY  IN  LEGAL  HISTORY 


CHAPTER  I 

HISTORY  OF  THE   CASE 

"The  State  of  Texas,  one  of  the  United  States  of  Amer- 
ica,"1 filed  suit,  on  Februrary  15,  1867,  against  the  following 
individuals :  George  W.  White,  John  Chiles,  John  A.  Harden- 
berg,  the  firm  of  Birch,  Murray  &  Company,  and  others.2 
The  petition  prayed  an  injunction  against  the  persons  named 
in  order  to  prevent  them  from  setting  up  a  claim  to  or  obtain- 
ing the  payment  of  certain  bonds,  known  as  the  Texas  Indem- 
nity Bonds,  from  the  Treasury  of  the  United  States,  and, 
finally,  that  they  be  constrained  to  restore  the  bonds  to  the 
petitioners,  who  claimed  to  be  the  accredited  representatives  of 
the  State  of  Texas.  The  bill  in  the  suit  particularly  demanded 
the  return  of  some  fifty  of  these  bonds  which  were  known  to 
be  in  the  possession  of  the  persons  against  whom  these  in- 
junction proceedings  were  aimed.  This  suit  was  instituted  be- 
fore the  Supreme  Court  of  the  United  States.  Such  action 
was  in  accordance  with  that  provision  of  the  Constitution 
which  ordains  that  the  Supreme  Court  shall  have  original 
jurisdiction    of  cases  in  which  a  "State"  shall  be  a  party.3 

The  Texas  Indemnity  Bonds 

The  history  of  the  bonds  mentioned  in  this  suit  properly 
begins  with  that  of  certain  Texas  claims  against  the  United 
States  which  grew  out  of  conditions  antecedent  to  annexation 

1  Record  of  the  Case,  2.  Record  of  Cases,  1876.  Found  in  the 
library  of  the  Supreme  Court  at  Washington. 

2  The  bill  in  the  suit  mentioned  the  following  persons  or  corpora- 
tions: George  W.  White,  a  citizen  of  Tennessee;  John  Chiles,  of  New 
York;  J.  A.  Hardenberg,  of  New  York;  Samuel  Wolf,  of  Kentucky; 
G.  A.  Stewart,  of  Kentucky;  Bank  of  the  Commonwealth  of  Kentucky; 
W.  F.  Birch,  of  New  York;  Byron  Murray,  Jr.,  of  New  York;  and 
Charles  P.  Shaw,  of  New  York.    Ibid. 

3  Section  II  of  Article  III  of  the  Constitution. 


12  Texas  v.  White 

and,  subsequent  to  that  event,  out  of  demands  for  the  settle- 
ment of  territorial  boundaries.  The  people  of  Texas,  before 
annexation,  expected  the  United  States  to  assume  the  debts  of 
■the  Republic  should  Texas  be  incorporated  into  the  Union, 
and  this  was  not  an  unreasonable  expectation.  On  the  con- 
trary, it  was  considered  by  many  a  fair  exchange.  As  a  re- 
public, Texas  had  all  the  rights  of  taxation  and  the  possibili- 
ties of  revenue  which  are  associated  with  sovereign  power, 
but  on  entering  the  Union  as  a  State,  many  of  these  rights  and 
possibilities  were  relinquished  to  the  United  States.  In  ad- 
dition, certain  public  properties  and  war  stores  were  surren- 
dered to  the  United  States.  For  none  of  these  was  there  any 
adequate  return  provided  in  the  joint  resolution  of  annexation. 
This  resolution,  indeed,  expressly  stated  that  in  no  event  were 
the  "debts  to  become  a  charge  upon  the  United  States."4 
This  statement  was  not  necessarily  decisive,  since  it  was, 
no  doubt,  introduced  to  render  more  certain  the  passage  of  a 
measure  which  had  not  before  enjoyed  general  popularity.5 

Although  Texas  accepted  the  proposition  of  annexation, 
it  was  with  strenuous  and  continued  protest  against  the  in- 
justice which  was  considered  to  have  been  done.  It  was  in- 
sisted that  the  United  States  should  assume  the  debts  of  the 
old  republic.  In  addition,  certain  territorial  claims  caused 
trouble.  Originally,  Texas  claimed  as  her  western  boundary 
the  Rio  Grande  to  its  source,  and  thence  north  to  the  line  of 
42  degrees  latitude.6  After  the  Mexican  War  the  United 
States  sought  to  contract  this  claim.  For  reasons  unnecessary 
to  state  here,  the  controversy  over  these  lands  became  more 
and  more  bitter,  until,  finally,  the  State  determined  to  assert 
its  right  to  the  territory  by  force  should  the  United  States 
government     continue  to  dispute  the  claim.7     Such,  in  brief, 

4  Joint  Resolution  No.  8,  28th  Cong.,  2d  Sess.,  1845,  U.  S.  Statutes  at 
Large,  V,  797. 

°  Smith,  Annexation  of  Texas,  323  et  scq.;  Texas  Annexation  Pam- 
phlets in   Columbia   University  Library. 

6  Shepherd,  Historical  Atlas,  198.  This  claim  included  parts  of  the 
present  States  of  New  Mexico,  Oklahoma,  Kansas,  Colorado,  and 
Wyoming.    See  Garrison,  Texas,  165. 

7  Rhodes,  History  of  the  United  States  since  the  Compromise  of 
1850,  I,  190. 


History  of  the  Case  13 

was  the  case  when  the  compromise  measures  of  1850  were 
adopted  by  Congress.  The  facts  which  have  been  stated  were 
the  occasion  of  one  feature  of  this  compromise,  the  provisions 
for  the  Texas  indemnitv  and  for  the  establishment  of  a  terri- 
torial  government  for  Xew  Mexico  being  embodied  in  one  bill. 
The  fourth  article  of  the  bill  declared  that 

The  United  States  in  consideration  of  said  establishment  of 
boundaries,  cession  of  claim  to  territory,  and  relinquishment 
of  claims,  will  pay  to  the  State  of  Texas  the  sum  of  ten 
millions  of  dollars  in  a  stock  bearing  five  per  cent,  interest,  and 
redeemable  at  the  end  of  fourteen  years,  the  interest  payable 
half-yearly  at  the  treasury  of  the  United  States.8 

Of  this  sum,  five  millions  became  the  property  of  the  State  im- 
mediately, and  the  other  half  was  reserved  in  the  national 
treasury  to  be  issued  to  the  holders  of  the  Texas  debt.!)  Those 
who  were  to  profit  by  this  appropriation  were  the  "creditors  of 
the  State  holding  bonds  and  other  certificates  of  stock  of 
Texas,  for  which  the  duties  on  imports  were  specially 
pledged."10  On  November  25,  1850,  an  act  of  the  Texas  legis- 
lature declared  that,  "the  State  of  Texas  agrees  to  and  accepts 
said  propositions,  and  it  is  hereby  declared  that  the  said  State 
shall  be  bound  by  the  terms  thereof,  according  to  their  true 
import  and  meaning."11 

It  was  not  until  December  16,  1851,  however,  that  a  law 
was  passed  designating  a  receiver  of  the  bonds.  On  that  date 
the  comptroller  of  public  accounts  was  ordered  to  proceed  to 
Washington  and  convey  them  to  the  state  treasury  at  Austin. 
The  bonds  were  then  to  be  disposed  of  as  the  legislature 
should  ordain,  "provided,  that  no  bond,  issued  as  aforesaid, 
as  a  portion  of  the  said  five  millions  of  stock,  payable  to  the 
bearer,  shall  be  available  in  the  hands  of  any  holder  until  the 


8  U.  S.  Statutes  at  Large,  IX,  Ch.  49,  446-447. 

"For  an  account  of  the  public  debt  of  Texas  and  the  disposition  of 
this  sum,  see  Gouge,  Fiscal  History  of  Texas,  179-191  ;  also  the  opinion 
of  Attorney-General  Caleb  dishing  in  Opinions  of  the  Attorney  Gen- 
erals, VI,  130  et  seq. 

10  U.  S.  Statutes  at  Large,  IX,  Ch.  49,  pp.  446-447. 

11  Gammel,  Laws  of  Texas,  III,  832-833. 


14  Texas  v.  White 

same  shall  have  been  indorsed  by  the  Governor  of  the  State 
of  Texas."12 

Obviously  this  was  intended  as  a  general  law  imposing 
upon  the  governor  of  the  State  by  statute  the  duty  of  endors- 
ing each  bond  as  it  was  made  use  of.  Since  at  a  later  time 
much  was  made  of  this  requirement,  it  will  be  profitable  to 
ascertain  whether  or  not  it  was  ordinarily  complied  with,  and 
whether  it  had  any  effect  upon  the  title  of  the  holder  after 
bonds  had  passed  from  the  possession  of  the  State.  Accord- 
ing to  the  statement  printed  upon  the  face  of  the  bond,  it  was 
payable  to  Texas  or  the  bearer  after  the  expiration  of  fourteen 
years.  This  was,  therefore,  a  contract  between  the  United 
States  on  the  one  hand  and  Texas  or  the  holder  on  the  other. 
When  the  State  of  Texas  endeavored  to  alter  the  contract  by 
requiring  the  endorsement  of  the  governor,  the  attempt  was  an 
impairment  of  the  contract,  and  was,  therefore,  of  no  effect 
in  law.13  The  real  result  of  such  an  enactment  was  that  it 
prescribed  certain  duties  to  be  performed  by  particular  state 
officials.  It  produced  no  defect,  however,  in  the  title  of  the 
holder  of  a  bond  from  which  the  signature  had  been  withheld, 
although  it  might  indicate  the  possibility  of  illegal  possession. 
This  appears  to  have  been  the  trend  of  reasoning  by  which 
the  treasury  officials  were  governed  when  such  bonds  were 
presented  for  redemption.  The  State,  moreover,  was  not 
consistent  in  requiring,  nor  the  governors  in  writing,  this  en- 
dorsement. There  was  a  number  of  laws  passed,  making 
appropriations  of  either  the  bonds  or  the  interest  from  the 
matured  coupons,  which  did  not  stipulate  the  necessity  of  the 
governor's  endorsement  as  an  evidence  of  the  validity  of  the 
holder's  title.14 

The  use  made  of  these  bonds  was  varied.  There  was  an 
appropriation  of  more  than  two  millions  for  the  payment  of  a 
part  of  the  Texas  debt  unprovided  for  by  the  United  States; 


12  Gammel,  Laws  of  Texas,  III,  889-890;  Paschal,  Digest  of  Texas 
Laws,  902. 

13  Attorney-General    Speed's    opinion,    1865;    Comptroller    (U.    S.) 
Tayler's  report.    Reprinted  in  Paschal's  Digest,  902  et  seq. 

14  Paschal's  Digest,  903. 


History  oe  the  Case  15 

SI 00,000  of  the  accumulated  interest  was  voted  to  a  building 
fund  for  the  erection  of  a  new  state  house  then  contemplated, 
and  $25,000  was  set  aside  for  furnishings.  On  January  31, 
1854.  an  act  was  approved  which  provided  for  the  establish- 
ment of  a  school  fund,  and  which  dedicated  $2,000,000  of 
these  bonds  as  an  endowment  for  that  purpose.15  These  bonds 
were  in  the  treasury  when,  in  1856,  it  was  decided  to  lend  a 
part  of  them  to  certain  railroad  companies,  which  were  at  that 
time  planning  to  build  lines  within  the  State.16  In  this  way 
Texas  would  get  the  advantage  of  a  higher  rate  of  interest, 
and  at  the  same  time  would  encourage  industrial  development 
in  the  State, — then  a  policy  quite  generally  approved.  This 
plan  was  carried  out  extensively,  and,  of  the  original  fund  set 
apart  for  the  public  schools,  there  remained  only  about  $800,- 
000  when  the  State  seceded  in  1861. 1T 

The  Secession  of  Texas 

With  the  causes  which  impelled  Texas  to  sever  her  connec- 
tion with  the  Union,  this  study  has  nothing  to  do.  It  is  nec- 
essary only  to  notice  the  fact  of  secession,  and  the  method 
by  which  it  was  accomplished.  During  the  agitation  preceding 
this  action,  Governor  Houston  vehemently  opposed  disunion; 
and,  unlike  many  governors  of  the  other  Southern  States,  re- 
fused to  call  a  convention  after  the  election  of  Lincoln. 
Because  of  this  continued  opposition,  an  extra-legal  step  was 
taken,  and  a  proclamation,  signed  by  sixty-one  individuals, 
was  issued,  which,  among  other  things,  called  upon  the  people 


"Gammel,  Laws  of  Texas,  III,  1461-1465. 

10  Ibid.,  Vol.  IV,  32-40. 

"In  1855,  the  United  States  appropriated  $7,750,000,  in  lieu  of  the 
five  millions  already  set  aside  for  the  Texas  creditors.  The  addition 
was  made  in  compensation  for  certain  sums  expended  hy  Texas  in 
defense  of  her  frontier  against  the  Indians.  The  State  was  to  be 
repaid  for  any  part  of  the  debt  already  liquidated.  This  time  no  re- 
striction was  made  as  to  the  nature  of  the  debt  which  the  United  States 
proposed  to  pay.  Any  creditor  might  present  certificates  of  the  State's 
indebtedness.  U.  S.  Statutes  at  Large  X,  33d  Cong.,  2d  Sess.,  Ch.  133, 
pp.  617-619.  A  part  of  this  sum  was  in  the  national  treasury  as  late 
as  1870,  and  was  made  the  basis  of  a  new  claim  against  the  United 
States.     See  report  of  (Texas)   Comptroller  of  Public  Accounts,  1870. 


16  Texas  v.  White 

of  Texas  to  elect  delegates  to  such  a  convention.18  In  re- 
sponse to  this,  an  election  was  held,  and  delegates  were  return- 
ed from  some  districts.  On  February  1,  1861,  an  ordinance  of 
secession  was  solemnly  adopted.19  After  having  been  indorsed 
by  the  legislature,  this  ordinance  was  submitted  to  the  people 
for  their  ratification  or  rejection.  It  was  ratified  by  a  vote  of 
46,129  against  14,697. 20  After  this  affirmative  vote,  the  con- 
vention reassembled,  and  declared,  on  March  4,  that  the  vote 
had  resulted  in  the  ratification  of  the  ordinance,  and  that 
Texas  had  withdrawn  from  the  Union.  Previous  to  this  ex- 
pression of  the  will  of  the  people,  delegates  had  been  sent,  on 
the  authority  of  the  convention,  to  the  Confederate  govern- 
ment, at  Montgomery,  Alabama.  After  the  ratification  of  the 
ordinance,  a  resolution  was  adopted  requiring  all  state  officials 
to  take  an  oath  of  allegiance  to  this  government.  The  govern- 
or and  the  secretary  of  state  refused  to  comply  with  this  order, 
and  their  offices  were  forthwith  declared  vacant.21 

The  senators  and  representatives  in  Congress  were  notified 
of  the  State's  action,  and  they,  with  the  exception  of  Andrew 
J.  Hamilton,  withdrew.  Texas  thus  resumed  the  status  of  a 
free  and  sovereign  State, — so  far  as  the  action  of  her  people 
could  accomplish  that  fact.  The  doctrine  of  State  Sover- 
eignty, so  long  cherished  as  a  fundamental  part  of  the  political 
philosophy  of  the  South,  thus  found  its  final  fruition  in  the 
definite  act  of  secession.  Its  efficacy,  as  a  practical  policy, 
was  now  to  be  tested.     The  moral  conviction  of  its  righteous- 


18  Among  the  names  of  these  men  was  that  of  George  W.  White,  the 
defendant  in  this  case. 

For  the  circumstances  attending  the  calling  of  the  convention  see 
Sandbo,  "First  Session  of  the  Secession  Convention  of  Texas,"  in 
The  Southwestern  Historical  Quarterly,  XVIII,  178-190. 

19  The  title  of  the  ordinance  was :  "An  Ordinance  to  dissolve  the 
union  between  the  State  of  Texas  and  the  other  States,  united  under 
the  compact  styled  'The  Constitution  of  the  United  States.'  " 

:0  Winkler  (editor),  Journal  of  the  Texas  Secession  Convention,  90. 
Garrison,  Texas,  287,  gives  the  vote  as  more  than  44,000  for  secession 
to  about  13,000  against.  The  figures  employed  in  the  court  records  and 
proceedings  were  34,794  against  11,235. 

21  Gammel,  Laws  of  Texas,  IV,  1528.  The  secretary  mentioned  was 
Mr.  E.  W.  Cave. 


History  of  the:  Case:  17 

ness — a  part  of  the  public  consciousness  of  the  time — was 
strengthened  in  the  effort  to  maintain  the  legal  and  practical 
privileges  deducible  from  the  theory. 

The  State  Military  Board  and   the  Disposal   of  the    United 

States  Bonds 

In  the  course  of  the  struggle  which  followed,  the  Texas 
legislature  passed,  in  1862,  an  act  entitled  "An  act  to  provide 
arms  and  ammunition,  and  for  the  manufacture  of  arms  and 
ordnance  for  the  military  defence  of  the  State."22  This  law 
was  enacted  as  a  result  of  a  suggestion  from  the  Confederate 
secretary  of  war,  Judah  P.  Benjamin.  It  appears  that,  in 
1861,  he  created  an  ordnance  agency  to  purchase  arms  and 
supplies,  and  to  have  supervision  of  the  sale  of  cotton  to 
foreign  countries.  As  one  of  the  agents  of  this  department, 
G.  H.  Giddings,  a  citizen  of  Texas,  was  sent  to  Matamoras, 
Mexico.  When  he  attempted  to  make  arrangements  with  the 
local  bankers  and  merchants,  he  was  informed  that  they  pre- 
ferred United  States  bonds  to  the  Confederate  securities  he 
was  able  to  offer."23  Giddings,  knowing  of  the  bonds  at  Aus- 
tin, and  thinking  that  they  might  be  utilized  to  overcome  the 
objections  of  the  Mexican  and  other  foreign  financiers,  sug- 
gested to  Benjamin  that  some  basis  of  exchange  be  agreed 
upon  with  the  State  authorities.  Accordingly  Benjamin  wrote 
to  Governor  Lubbock,  explaining  the  situation  and  requesting 
the  State  to  buy  arms  and  ammunition  with  the  bonds.  He 
promised  that  the  Confederate  government  would  then  repur- 
chase them  with  eight  per  cent.  Confederate  bonds  then  being 
issued.24  On  receipt  of  the  letter,  the  governor  submitted 
the  matter  to  the  legislature,  which  was  then  in  session,  and 
recommended  that  he  be  empowered  to  comply  with  the  sec- 
retary's request.  To  meet  this  emergency,  the  legislature  cre- 
ated a  Military  Board  and  passed  the  act  above  mentioned. 


22  Ibid.,  Vol.  V,  484. 

"Giddings   to   Benjamin,   Official  Records,   War  of   the   Rebellion, 
Scries  IV,  Vol.  1,  774  (Serial  No.  127). 
"Benjamin  to  Lubbock,  Ibid.,  830. 


18  Texas  v.  White 

This  board  was  given  sufficient  powers  to  accomplish  the  pur- 
poses of  that  law,  being  authorized  to  make  use  of  any  "bonds 
or  coupons  which  may  be  in  the  treasury  on  any  ac  it."25 
In  the  specification  of  the  bonds  the  act  was  intentionally 
comprehensive,  so  as  to  avoid  in  negotiating  the  bonds  any 
possible  complications  that  might  frustrate  the  purposes  of 
the  act.2'5 

On  the  same  day  (January  11,  1862),  the  legislature  re- 
pealed the  act  of  1851  which  required  the  endorsement  of  the 
governor  in  order  to  render  the  bonds  available.  In  the  re- 
pealing act,  the  same  caution  was  manifested  by  the  avoidance 
of  mention  of  the  specific  clause  which  was  to  be  made  in- 
operative.27 The  act  was  repealed  in  toto.  It  seems  indispu- 
table to  the  writer  that  all  concerned  in  the  enactment  of  this 
law  knew  that  the  bonds  were  to  be  used  to  aid  the  Confed- 
eracy, and  further  it  is  clear  that  the  caution  was  observed  in 
order  to  prevent  any  embarrassment  to  the  negotiator  or  pros- 
pective holders  of  the  bonds.  Due  to  misunderstandings  with 
the  Confederate  War  Department  and  to  certain  limitations  of 
the  Confederate  law,  the  bonds  were  not  used  for  the  purpose 
Giddings  proposed;  but  the  Military  Board  thus  created  con- 
tinued in  existence  throughout  the  war. 

Under  authority  of  these  acts,  the  Military  Board,  on 
January  12,  1865,  agreed  to  sell  to  George  W.  White  and 
John  Chiles  135  of  these  bonds,  then  in  the  State  Treasury, 


20  Gammel,  Laws  of  Texas,  V,  491. 

■"Lubbock  to  Benjamin,  Off.  Rec.,  Ser.  IV,  Vol.  I,  p.  839. 

27  Gammel,  Laws  of  Texas,  V,  489.  Tbe  original  suggestion  of  Sec- 
retary Benjamin  was  not  followed.  Instead  of  buying  the  arms  out- 
right in  the  name  of  Texas,  the  board  turned  over  $100,000  of  the 
United  States  bonds  to  Giddings,  and  took  his  receipt.  The  board  ex- 
pected Benjamin  to  acknowledge  the  receipt  and  to  deposit  Confederate 
bonds  in  exchange.  Benjamin,  however,  ordered  Giddings  to  return  the 
United  States  bonds  immediately,  saying  that  the  law  only  allowed  him 
to  purchase  arms.  This  statement  was  accompanied  with  a  mild  rebuke. 
The  letter  of  Benjamin  to  the  Military  Board  also  displayed  some 
acerbity,  and  led  to  strained  official  relations  between  the  two.  The  orig- 
inal purpose  of  the  act  creating  the  Board  was,  therefore,  not  accom- 
plished, on  account  of  the  very  technical  interpretation  of  the  law  by 
Benjamin. 


History  of  the  Case  19 

and  seventy-six  others  which  were  then  in  the  hands  of  certain 
bankers  in  England.28  In  payment  for  these  bonds,  that  is, 
for  '  '-■!.  ^first  135,  White  and  Chiles  were  to  deliver  to  the 
board  25,000  cotton  cards,  equal  in  value  and  quality  to  No.  10 
\Yhi+rhore  cards,  and,  secondly,  medicines  of  the  best  grade.29 
In  case  these  articles  should  not  be  delivered,  White  and  Chiles 


The  Military  Board,  as  first  constituted,  consisted  of  the  governor, 
the  treasurer,  and  the  comptroller  of  public  accounts.  Later,  in  1863, 
the  law  was  changed,  making  the  board  to  consist  of  the  governor, 
ex  officio,  and  two  others  appointed  by  him.  Prior  to  this  act,  the 
board  was  known  as  the  Old  Board,  and  after  it,  the  New  Board. 
During  all  the  periods  of  its  existence,  the  changes  in  personnel  were 
as  follows :  From  January,  1862,  to  November,  1863 :  F.  R.  Lubbock,  C. 
R.  Johns,  and  C.  H.  Randolph;  from  November,  1863,  to  April,  1864: 
P.  Murrah,  Johns,  and  Randolph  ;  and  from  then  on, — Murrah,  N.  B. 
Peai  ~e,  and  J.  S.  Holman.  It  was  the  board  as  last  constituted  that 
made  the  contract  with  White  and  Chiles.  During  the  existence  of  both 
boards,  $634,000  in  the  bonds  and  $132,700  in  coupons  were  used.  For 
an  account  of  the  Military  Board  and  of  the  various  contracts  which 
it  made,  see  the  report  of  Pease  and  Palm. 

The  bonds,  mentioned  above  as  being  in  England,  were  in  the 
hands  of  Messrs.  Droege  &  Company,  of  Manchester.  In  1862,  the 
Military  Board  had  authorized  the  firm  of  John  M.  Swisher  &  Com- 
pany of  Austin,  Texas,  to  negotiate  300  of  the  indemnity  bonds.  In 
fulfillment  of  this  arrangement,  Mr.  Swisher  had  transported  the  bonds 
to  England,  and  had  employed  Droege  &  Company  as  his  agents.  He 
deposited  the  bonds  with  this  house  in  his  own  name,  and  the  trans- 
action was  throughout  apparently  of  a  private  character.  Through 
Droege  &  Company  a  sale  was  effected  during  the  first  year ;  149  of  the 
bonds  were  sold  to  George  A.  Peabody  &  Company  for  £25,981,  pay- 
able in  three  installments.  The  remaining  151  bonds  were  still  in  the 
possession  of  Droege  &  Company  when  the  contract  was  made  between 
White  and  Chiles  and  the  Military  Board,  and  it  was  upon  these  bonds 
that  the  board  drew  when  it  transferred  the  seventy-six  bonds  to 
White  and  Chiles. 

29  A  copy  of  the  contract  between  White  and  Chiles  and  the  Military 
Board  may  be  found  in  the  File  Copy  of  Briefs  for  1876.  This  docu- 
ment is  in  the  library  of  the  Supreme  Court  at  Washington.  Accord- 
ing to  Governor  Hamilton,  the  original  draft  of  this  contract  was 
found  by  Mr.  Swante  Palm  in  one  of  the  rooms  of  the  State  Capitol 
among  the  waste  papers  which  had  been  scattered  there  when  the  Con- 
federates abandoned  the  building.  Led  by  curiosity,  Mr.  Palm  looked 
about  and  discovered  many  of  the  papers  later  employed  in  the  case 
of  Texas  v.  White  by  the  legal  representatives  of  the  State,  including 
the  receipt  and  a  partial  list  of  the  numbers  of  the  bonds  transferred 
to  White  and  Chiles.    Record  of  the  case,  79. 


20  Texas  v.  White 

were  bound  to  deposit  with  the  State,  bonds  of  Texas  equal  to 
the  amount  turned  over  to  them  in  the  United  States  bonds.30 
As  security,  these  men  offered  the  names  of  seven  prominent 
citizens  of  Texas.31  This  guarantee  being  considered  suffi- 
cient, the  board  delivered  the  bonds  to  White  and  Chiles,  but 
none  of  them  was  indorsed  by  any  governor  of  Texas. 

Was  the  purpose  and  possible  effect  of  the  contract  of 
the  Military  Board  to  aid  the  Confederacy?  On  this  question 
the  merits  of  the  case  were  determined,  and  on  it  there  may 
be  and  was  an  honest  difference  of  opinion.  Cotton  cards  were 
contraband  and  they  might  have  been  used  for  military  pur- 
poses, but  such  usage  would  have  been  indirect.  Respecting 
the  medical  supplies,  it  seems  that  the  more  enlightened  view 
should  have  been  that  hospitals,  hospital  supplies,  and  medi- 
cines are  neutralized  in  time  of  war.  Such  was  the  doctrine 
set  forth  in  Lieber's  famous  General  Order,  Number  100,  and 
in  the  Geneva  Convention  of  1864. 

Whether  through  the  fault  of  White  and  Chiles  or  not, 
the  cards  and  medicines  were  never  delivered  to  the  board. 
From  the  testimony,  it  appears  that  they  sent  these  articles 
to  Matamoras,  Mexico,  which  was  then  a  portal  to  the  Con- 
federacy, and  that  here  the  agent  of  White  and  Chiles  took 
possession  and  forwarded  the  cards  and  medicines  to  Austin. 
En  route,  however,  they  were  destroyed  by  some  one  of  the 
bands  of  marauders  or  robbers  which  then  infested  the  borders 
of  the  State.  According  to  Chiles,  the  work  of  destruction  or 
seizure  was  done  by  the  disbanded  soldiers  of  General  Kirby 
Smith.  Whether  such  was  the  case  or  not,  it  is  impossible  to 
say  with  any  degree  of  certainty. 

In  the  record  of  the  case,  it  was  stated  that,  as  early  as 
1862,  George  W.  Paschal,  a  loyalist  of  Texas,  wrote  to  the 
secretary  of  the  treasury  of  the  United  States,  Mr.  Chase, 
warning  him  that  an  effort  was  going  to  be  made  to  utilize  the 

30  The  bonds  here  referred  to  were  the  7  or  8  per  cent  State  bonds 
of  Texas.  In  reckoning  the  amount  to  be  deposited,  it  was  agreed  that 
the  United  States  bonds  were  to  be  rated  at  eighty  cents  on  the  dollar, 
the  State  bonds  at  par.     See  Pease  and  Palm ;  Paschal's  Digest,  908. 

31  Paschal's  Digest,  908. 


History  of  the  Case  21 

indemnity  bonds  in  the  interests  of  the  Confederacy,  and 
informing  him  that  such  bonds  could  be  identified  by  the 
absence  of  the  governor's  indorsement.32  Apparently  this 
statement  was  made  on  the  assumption  that  all  bonds  circu- 
lated before  the  war  had  been  so  indorsed.  As  has  been 
pointed  out,  however,  this  was  by  no  means  the  case.  We 
are  informed  that  the  treasury  department  acted  on  this  in- 
formation, and  that,  in  general,  payment  of  bonds  and  the  in- 
terest was  refused  when  such  indorsement  was  lacking.  This 
policy,  however,  was  not  always  followed,  and  some  of  the 
bonds  of  this  character  were  redeemed.33 

Restoration    and    Reconstruction    of    Texas 

After  the  surrender  of  the  Confederate  armies,  the  Fed- 
eral troops  promptly  assumed  control  of  a  large  part  of 
Texas.  Immediately  before  this  event,  many  of  the  State  offi- 
cials fled  to  Mexico  or  to  Europe.  Coincident  with  this  flight, 
organized  civil  government  practically  disappeared.  As  the 
Confederate  authority  collapsed,  the  President,  in  order  to 
afford  Texas  the  republican  form  of  government,  guaranteed 
to  each  of  the  States  by  the  Constitution  and  by  virtue  of  his 
military  powers,  filled  the  governmental  vacuum,  by  the  crea- 
tion of  a  provisional  government.  The  military  power  was 
incontestably  his,  and  he  assumed  that  the  President  should 
enforce  the  guaranty  clause, — an  assumption  as  shall  later  ap- 
pear which  was  questionable,  if  not  unfounded  in  law.  He  is- 
sued his  proclamation,  appointing  A.  J.  Hamilton  provisional 
governor,  on  June  17,  1865.  Under  this  government,  the  people 
of  Texas  proceeded  to  make  a  new  constitution  in  which  were 
incorporated  what  were  considered  to  be  the  legitimate  results 
of  the  war.  In  accordance  with  this  instrument,  an  election  was 
held  for  both  state  and  national  officers.  In  this  election,  the 
suffrage  qualifications  were  practically  the  same  as  had  obtain- 
ed before  the  war.  J.  W.  Throckmorton  was  chosen  governor, 
and  was  promptly  installed.  The  men  elected  to  Congress  were 


:"7  Wallace,  706;  Paschal's  brief,  File  of  Briefs,  Vol.  I,  1876. 
Reporl  of  the    |  U.  SO   C.nnptmlkT   for   1865. 


22  Texas  v.  White 

given  their  credentials,  and,  after  the  opening  of  Congress  in 
1866,  presented  themselves  at  Washington  for  admission.  The 
President  urged  that  their  demand  be  granted,  and  that  Con- 
gress should  thus  place  the  stamp  of  its  approval  upon  his  ef- 
forts to  restore  the  Southern  States  to  their  constitutional  re- 
lationship with  the  government  of  the  United  States.  Congress, 
however,  as  previously  in  the  cases  of  the  other  states,  except 
Tennessee,  which  had  attempted  secession,  saw  fit  to  act  other- 
wise, and  Texas  was  not  acknowledged  to  have  been  satis- 
factorily or  properly  restored.  On  the  contrary,  an  amend- 
ment to  the  Constitution  was  submitted  to  the  States  for 
ratification,  and  acceptance  of  it  was  made  a  preliminary  con- 
dition to  the  readmission  of  those  States  which  had  lately 
been  at  War  against  the  Union.  Texas,  in  company  with  the 
other  Southern  States,  except  Tennessee,  rejected  the  four- 
teenth amendment,  and  thus  effectively  blocked  the  congress- 
ional plan  of  restoration.  The  first  phase  of  the  relations  of 
Congress  to  the  Southern  States  was  thus  ended,  and  the  rad- 
ical leaders  in  Congress  then  introduced  measures  for  drastic 
reconstruction.  The  source  of  power  for  these  acts  was  the 
clause  of  the  Constitution  whereby  the  United  States  guaran- 
teed to  each  State  a  republican  form  of  government.  Was  this 
exclusively  a  legislative  power?  The  opinion  in  Texas  v.  White 
was  a  partial  answer.  By  the  act  of  March  2,  1867,  it  was 
decreed  that  no  legal  government  existed  in  the  late  insur- 
rectionary States,  and  that  there  was  no  adequate  protection 
of  life  and  property.  The  States  whose  governments  were  so 
impugned  were  then  divided  into  five  military  districts,  and  it 
was  made  the  duty  of  the  President  to  assign  to  each  district 
a  general  of  the  army.  To  such  officers,  ample  powers  were 
given  to  suppress  disorder,  and  to  perform  the  other  duties 
which  were  then  and  later  imposed  upon  them.  Although  the 
avowed  purpose  was  the  establishment  of  a  more  substantial 
and  reliable  police  power  in  the  Southern  States,  the  real 
purpose  was  political.  A  convention  was  to  be  held  in  each 
State  "elected  by  the  male  citizens  of  said  State,  twenty- 
one  years  old  and  upwards  of  whatever  race,  color  or  previous 


History  oe  the  Case  23 

condition."34  Later,  on  March  23,  certain  rules  were  pre- 
scribed for  the  registration  of  the  enlarged  electorate  con- 
templated in  the  earlier  act.  Governments  in  existence  in 
these  States  were  declared  to  be  subject  to  the  paramount 
authority  of  the  United  States  at  any  time,  to  abolish,  modify, 
or  supersede  them.  And  they  were  modified  or  superseded 
whenever  the  occasion,  in  the  opinion  of  the  commander, 
seemed  to  warrant  it. 

Of  these  military  districts,  Texas  and  Louisiana  formed 
the  fifth.  The  officer  first  designated  as  commander  of 
this  district,  General  Sheridan,  soon  took  over  a  very  large 
share  of  the  administration  of  the  government,  civil  and  ju- 
dicial, as  well  as  military.  Governor  Throckmorton  proved  too 
moderate  and  conservative,  and  Sheridan  removed  him,  as- 
signing as  a  reason  for  such  action  that  the  governor  was 
"an  impediment  to  reconstruction."35  In  his  stead,  a  former 
governor,  E.  M.  Pease,  was  appointed.  Thus  the  State  govern- 
ment was  reduced  to  the  position  of  subserviency  and  impo- 
tence prepared  for  it  by  the  action  of  Congress.  Thence- 
forward it  became  difficult  to  associate  with  it  the  attributes 
hitherto  considered  necessary  to  the  existence  of  a  State. 

The  foregoing  paragraphs  epitomize  the  history  necessary 
to  a  right  understanding  of  the  case,  and  I  now  turn  to  an 
examination  of  the  action  of  the  various  governments  therein 
mentioned  in  reference  to  the  Texas  bonds.  The  finances  of 
Texas,  like  those  of  the  other  States  of  the  distracted  South, 
were  in  disorder  and  confusion  at  the  close  of  the  war;  and 
among  the  earliest  efforts  at  rehabilitation,  were  those  directed 
to  remedy  this  condition.  Governor  Hamilton  appointed 
Messrs.  E.  M.  Pease  and  Swante  Palm  to  investigate  the 
treasury,  and,  in  general,  the  financial  condition  of  the  State. 
They  were  also  to  inquire  about  the  disposition  of  the  bonds 


M  See  treatment  of  these  laws  in  Dunning,  Essays,  \76  et  seq.  The 
text  of  the  laws  is  to  be  found  in  Fleming,  Documentary  History  of 
Reconstruction,  I,  401   et  seq. 

83  For  detailed  study  of  this  period  in  Texas,  in  all  its  aspects,  see 
Ramsdell,  Reconstruction  in  Texas.  For  a  discussion  of  this  particular 
topic,  see  pp.  145  et  seq. 


24  Texas  v.  White 

and  to  recommend  methods  of  recovery,  if  such  were  feasible.36 
To  supplement  and  legalize  these  steps,  the  constitutional 
convention  of  1866  passed  an  ordinance  empowering  the  gov- 
ernor to  take  steps  to  recover  the  bonds  or  to  compromise  with 
the  holders.37  This  action  was  inspired  by  George  W.  Paschal, 
who  was  later  appointed  financial  agent  and  legal  represen- 
tative of  the  State.  In  most  of  the  efforts,  legal  and  otherwise, 
to  recover  the  bonds,  the  influence  of  Paschal  was  strong, 
if  not  predominant.38 

36  Paschal,  Digest,  905.  This  report  contains  a  history  of  the  con- 
tracts, sales  and  receipts  of  the  Military  Board.  It  may  be  found  in 
Executive  Record  Book,  No.  281. 

37  Gammel,  Laws  of  Texas,  V,  889.  Ordinances  of  the  Convention 
No.  12.    Adopted,  April  2,  1866. 

88  Mr.  George  Washington  Paschal  was  a  man  of  considerable  prom- 
inence and  influence  in  the  political  affairs  of  Texas.  Prior  to  the 
war,  he  had  been  the  friend  and  supporter  of  Houston,  and  had  con- 
tributed powerfully  to  his  election  as  governor  in  1859.  During  the  war 
he  remained  constantly  loyal  to  the  Union.  His  views  on  secession 
were  made  public  in  the  Southern  Intelligencer,  which  he  established 
and  partly  owned.  As  a  lawyer  he  also  attained  to  some  distinction. 
He  was  the  author  of  a  number  of  works,  among  which  are:  A  Digest 
of  Texas  Law;  Annotated  Constitution  of  the  United  States;  Digest 
of  the  Decisions  of  the  Supreme  Court  of  Texas;  and  Life  of  Sam 
Houston.  During  the  Reconstruction  period,  he  became  an  ardent 
supporter  of  the  Congressional  plan.  He  joined  the  radicals,  and  en- 
dorsed the  most  extreme  position  occupied  by  that  party.  He  took  a 
prominent  part  in  the  convention  of  Southern  Loyalists  at  Philadelphia, 
in  1866,  and  used  his  influence  against  the  Johnson  administration  in 
the  election  which  followed.  It  was  his  boast  that  he  "contributed 
as  much  as  any  other  man  to  the  cause  of  popular  liberty  and  in 
the  establishment  of  the  constitutional  amendments,  which  give  citizen- 
ship and  suffrage  to  all."  It  was  intimated  that  Paschal  had  motives 
other  than  those  inspired  by  unselfish  patriotism  and  loyalty  to  the 
cause  of  education  which  urged  him  to  continue  his  efforts  to  secure 
these  bonds.  However  this  may  have  been,  it  is  known  that  he  was 
removed  from  his  position  as  representative  of  the  State  by  Governor 
Davis  at  least  partially  because  of  the  largeness  of  the  fee  which  he 
retained  from  the  moneys  collected  for  the  State.  Paschal  defended 
himself  from  the  charge  of  exacting  an  exorbitant  fee  by  claiming 
that  part  of  the  money  retained  was  compensation  for  printing  certain 
reports  of  the  Supreme  Court  of  Texas.  For  a  fuller  discussion  of  this 
matter,  see  below,  section  "In  re  Paschal." 

Like  so  many  of  the  Southern  Unionists  and  Radicals,  Paschal  later 
removed  to  the  North.  As  Professor  of  Law  at  Georgetown  Uni- 
versity, he  was  highly  respected  for  learning  and  ability. 


History  of  the  Case  25 

The  work  of  regaining  actual  possession  of  the  bonds  was 
started  by  General  Granger  immediately  after  the  occupation 
of  the  State  by  the  Federal  troops.  He  issued  a  proclamation 
ordering  that  all  moneys  belonging  to  the  state  should  be  turned 
over  to  the  military  authorities.  As  a  result  of  this  order,  106 
of  the  indemnity  bonds  were  recovered  and  were  given  to 
Hamilton  when  he  was  installed  as  governor.  After  Hamilton 
came  into  office,  an  effort  was  made  in  the  Texas  courts  to  re- 
cover bonds  from  White  and  Chiles,  but  neither  of  these  men 
was  then  in  the  State, — White  having  fled  to  Tennessee,  and 
Chiles  having  removed  his  residence  to  New  York.  The 
result  was  that  this  effort  proved  fruitless.  As  governor, 
Hamilton  resisted  the  efforts  of  White  to  secure  a  pardon 
for  participation  in  the  war,  and  recommended  the  confiscation 
of  White's  property.  Unofficially,  the  governor  seems  to  have 
played  a  very  different  part  in  this  matter.  According  to  the 
answers  of  both  White  and  Chiles  in  the  case  of  Texas  v. 
White,  Hamilton,  while  acting  as  governor  of  Texas,  became 
their  attorney  or  agent  to  assist  them  in  securing  the  payment 
of  the  bonds  in  their  possession.  According  to  Chiles,  a  fee 
of  $10,750  was  paid  to  Hamilton  for  his  services.  In  White's 
answer  there  is  the  statement  that  "an  understanding  was  ar- 
rived at  with  said  Hamilton,  and  it  was  agreed  that  said 
Hamilton  should  receive  $20,000,  in  said  indemnity  bonds, 
for  his  services  in  securing  payment  of  said  bonds,  at  the  treas- 
ury of  the  United  States,  to  an  amount  of  $135,000."  In  ful- 
fillment of  this  agreement,  $10,000  was  actually  paid  him, 
on  June  22,  1865,  and  the  remainder  was  to  become  due  when 
the  Treasury  Department  should  redeem  the  bonds.  This  sum 
was  deposited  to  his  credit  in  New  York  City  with  that  condi- 
tion. A  friend  of  the  governor,  J.  R.  Barrett,  was  also  en- 
gaged for  the  same  purpose,  and  a  large  fee  was  paid  him. 
If  these  allegations  were  true,  the  conduct  of  1  Iamilton  was, 
to  say  the  least,  somewhat  equivocal  and  open  to  question.  As 
governor,  he  criticized  White  and  Chiles  harshly  and  de- 
nounced them  for  having  taken  money  which  had  been  con- 
secrated to  the  school  fund.     In  another  capacity,  whatever 


26  Texas  v.  White 

it  was,  he  wrote  a  letter  to  Barrett  saying  that  the  govern- 
ment of  the  United  States  would  certainly  redeem  the  bonds 
for  the  benefit  of  the  holders,  and  stating  that  an  offer  on  the 
part  of  White  and  Chiles  to  sell  some  of  these  bonds  was  a 
good  proposition.  Despite  these  seemingly  contradictory  posi- 
tions, measures  were  taken  by  the  State  authorities  to  prevent 
the  payment  of  the  bonds  to  the  holders  by  the  United  States 
Treasury. 

Both  White  and  Chiles,  in  their  later  defence,  claimed  that 
they  offered  to  comply  with  that  provision  of  the  contract 
which  required  that  in  case  they  failed  to  deliver  the  cards 
and  medicines  they  should  pay  into  the  State  treasury  a  certain 
amount  of  Texas  bonds.  This  offer  was  refused  by  the  State 
treasurer  and  by  the  governor,  and  it  was  declared  by  both  of 
these  officials  that  the  contract  was  not  binding  upon  the 
State. 

According  to  the  law,  the  governor  had  the  discretionary 
power  of  compromising  with  the  holders  of  the  bonds,  if  such 
served  the  interest  of  the  State.  After  the  election  of  Throck- 
morton, negotiations  to  this  end  were  opened  between  him  and 
White.  It  seems  that  at  this  juncture,  White  had  in  his  posses- 
sion most,  if  not  all  of  the  bonds  which  had  not  been  disposed 
of  previously.  According  to  the  explanation  which  Chiles 
made  of  this  fact,  it  appeared  that  White  had  approached 
him  and  had  requested  that  he  be  allowed  temporary  possession 
of  the  bonds  in  order  that  he  might  meet  certain  obligations 
and  thus  save  his  property  in  Texas,  which  was  then  being 
threatened.  He  wanted  the  bonds  for  security,  and  Chiles 
yielded.  However  this  may  have  been,  White  agreed  to 
the  compromise  propositions  of  Throckmorton.  By  this  agree- 
ment, the  State  received  $12,000  in  currency  and  eight  bonds, 
which  were  then  on  deposit  at  the  United  States  treasury. 
White  also  released  his  claim  to  the  seventy-six  bonds  in 
England,  and,  in  turn,  the  State  released  White  and  Chiles 
from  all  obligations.  This  compromise  seems  to  have  recog- 
nized some  legal  validity  in  the  contract  made  by  the  Military 
Board.     In  effect,  it  allowed  White  to  retain  certain  bonds  in 


History  of  the  Case  27 

his  possession,  the  number  of  which  is  uncertain,  and  released 
him  from  the  obligations  of  his  contract,  which  became  oper- 
ative on  the  failure  to  deliver  the  cards  and  medicines.  He 
surrendered  his  shadowy  claim  to  the  bonds  then  in  the  hands 
of  Droege  &  Company  in  England,  but  Chiles  later  attempted 
to  secure  them,  and  was  adjudged  in  contempt  of  court  for  so 
doing.  The  bonds  which  were  involved  in  the  case  of  Texas  v. 
White  et  als. — fifty-one  out  of  the  original  one  hundred 
and  thirty-five — were  not  affected  by  this  compromise  and 
depended  on  the  issue  of  the  suit,  since  they  had  been  trans- 
ferred to  other  parties.  Yet  the  injunction  petition  seems  to 
have  been  sufficiently  inclusive  that  when  once  granted  all  of 
the  bonds  would  have  been  affected.  The  compromise,  how- 
ever, had  no  relation  to  the  case  in  question  except  indirectly 
as  mentioned. 

Chiles  complained  bitterly  against  this  compromise,  and 
contended  that  the  result  of  the  whole  proceeding  was  to 
deprive  him  of  his  rights,  and  that  it  was  effected  without 
consultation  with  him.  He  protested  to  the  governor  of  Texas, 
and  later  introduced  a  cross-bill  against  White  for  recovery 
and  damages,  but  in  neither  case  was  he  successful  in  securing 
his  object.39 

When  the  State  legislature  was  convened,  after  the  election 
of  Throckmorton,  an  act  was  passed  which  embodied  the  same 
provisions  as  were  contained  in  the  ordinance  of  the  convention 
before  mentioned.40  Empowered  by  this  law,  Throckmorton 
appointed  B.  H.  Epperson  financial  agent  and  legal  represen- 
tative of  Texas.  In  the  legal  measures  which  Epperson  took 
to  regain  the  bonds  the  attorney-general,  William  M.  Walton, 
was  associated  with  him.41    When  Pease  was  installed  as  gov- 

39  For  the  terms  of  this  compromise,  see  the  record  of  the  case,  File 
of  Records,  1876,  p.  64  et  scq.  See  also  the  report  of  the  (Texas) 
Comptroller  of  Public  Accounts  for  1866-1867,  1869-1870.  The  records 
of  the  case  are  found,  of  course,  in  the  library  of  the  Supreme  Court 
at  Washington. 

40  Gammel,  Laws  of  Texas,  V,  987. 

41  Attorney-General's  (Texas)  reporl  for  1866-67;  report  of  Comp- 
troller of  Public  Accounts  of  Texas  for  1869-70.  In  the  last  document 
cited,  there  is  an  account  of  the  activity  of  Epperson  and  Walton.  See 
especially  letter  of  Epperson  to  Comptroller  Bledsoe,  16-17. 


28  Texas  v.  White 

ernor,  the  Throckmorton  agents  were  dismissed,  and  Paschal 
again  became  the  official  representative  of  the  State,  serving  as 
one  of  the  lawyers  when  the  case  of  Texas  v.  White  was  being 
tried  before  the  Supreme  Court. 

Transfers  of  Bonds  from  White  and  Chiles 
The  bill  in  the  case  showed  that,  after  the  war,  White 
had  sold  a  number  of  bonds  to  John  A.  Hardenberg,  and 
that  Chiles  had  borrowed  money  from  Birch,  Murray  &  Com- 
pany, giving  bonds  as  security.42  Apparently  Hardenberg 
had  bought  his  bonds  in  an  open  market,  and  he  insisted  that 
the  purchase  was  bona  fide.i3  Whether  such  was  the  case, 
provoked  a  lively  debate  among  lawyers.  It  was  asserted  by 
the  Texas  lawyers  that  Hardenberg  and  the  others  who  had 
purchased  bonds  had  had  sufficient  notification  of  the  intention 
of  Texas  to  dispute  the  title  of  White  and  Chiles  to  the  bonds. 


42  For  detailed  account  of  the  negotiations  of  White  and  Chiles  in 
exploiting  the  bonds,  see  report  of  the  case,  7  Wallace,  714-716;  25 
Texas  (Supplement),  465-621. 

43  7  Wallace,  710-714.  It  is  beyond  the  scope  of  this  paper  to  de- 
scribe in  detail  the  manner  by  which  Hardenberg  acquired  possession 
of  thirty-four  of  the  bonds  originally  given  to  White  and  Chiles.  In 
brief,  however,  it  appears  from  the  testimony  that  they  passed  through 
numerous  hands  before  he  bought  them.  The  first  trade  was  consum- 
mated through  a  commission  merchant,  named  Hennessey,  and  he,  in 
turn,  had  received  them  from  a  Mr.  Douglas,  of  Tennessee.  Douglas 
was  the  representative  of  White  in  this  transaction.  Although  Harden- 
berg did  not  know  the  exact  source  whence  these  bonds  came,  he  was 
aware  that  the  original  owner  had  not  been  loyal  to  the  United  States 
during  the  late  intersectional  conflict.  He  made  no  investigation  to  as- 
certain the  identity  of  this  owner.  For  these  bonds  he  paid  120 
cents  on  the  dollar  at  a  time  when  gold  was  selling  at  146  and  declin- 
ing. This  he  considered  to  be  a  good  speculation.  By  this  purchase  he 
got  possession  of  thirty  bonds.  He  also  got  four  others, — one  from 
McKim  &  Company,  at  115  cents  on  the  dollar  with  gold  at  147,  and 
three  from  Kimball  &  Company  at  120  cents  on  the  dollar  with  gold 
at  146.  In  his  testimony,  Hardenberg  professed  not  to  know  that  the 
bonds  came  from  White  or  that  Texas  had  ever  passed  a  law  requiring 
the  indorsement  of  the  governor  in  order  to  make  the  indemnity  bonds 
negotiable.  There  seems  to  have  been  a  great  deal  of  speculation  in 
United  States  bonds  at  that  time.  The  bonds  were  redeemed  in  gold, 
and  the  holder  promptly  cleared  a  handsome  premium  from  the  high 
prices  of  gold  then  current. 


History  of  the  Case  29 

Evidence  was  adduced  to  substantiate  this  contention.  Paschal, 
in  1865,  had  written  several  notices  to  the  New  York  papers, — 
or  at  least  was  instrumental  in  causing  them  to  appear  in  the 
news  columns, — in  which  he  cautioned  the  public  not  to  buy- 
any  of  the  bonds  held  by  these  parties,  and  declared  that  Texas 
was  going  to  contest  the  claim  of  White  and  Chiles.  These 
notices  were  published  in  the  Herald  and  in  the  Tribune** 
If  these  newspaper  statements  should  be  accepted  by  the  court 
as  legal  notification,  the  purchase  of  bonds  by  Hardenberg 
was  merely  a  speculation  in  which  his  good  faith  was  question- 
able. 

Birch,  Murray  &  Company  had  taken  a  number  of  the 
bonds  as  security  for  a  loan  to  Chiles.  At  first  the  firm  lent 
him  $5,000,  for  which  he  deposited  twelve  bonds.  These  bonds 
were  taken  to  the  United  States  treasury  where  four  were 
redeemed,  the  principal  and  coupons  amounting  to  $4,900. 45 
The  eight  remaining  unredeemed  were  left  at  the  treasury, 
credited  to  the  firm.  Chiles  still  desiring  to  borrow  money, 
again  approached  Birch,  Murray  &  Company.     This  time  he 


14  Under  the  caption  "Caution  to  the  Public"  Paschal  wrote  the  his- 
tory of  the  Texas  indemnity  bonds.  In  conclusion  he  said :  "Now, 
therefore,  I  think  proper  to  give  the  public  notice  that  said  bonds  were 
delivered  to  White  and  Chiles  by  irresponsible  parties,  without  any 
legitimate  authority  and  in  violation  of  a  statute  of  the  State,  which  re- 
quires said  bonds  to  be  endorsed  by  the  governor  of  the  State  before 
they  shall  be  available  in  the  hands  of  any  holder ;  that  they  were 
delivered  under  a  pretended  contract,  which  bears  upon  its  face  indis- 
putable evidence  of  fraud,  and  that  the  said  White  and  Chiles,  not 
either  of  them,  have  ever  paid  or  caused  to  be  paid  to  the  said  State 
of  Texas  one  farthing  in  money  or  securities,  or  property  of  any 
character  for  said  bonds,  and  have  both  fled  from  the  State  of  Texas 
to  avoid  prosecution  and  punishment  under  the  laws  of  the  State ;  and 
that  these  facts  are  known  to  the  Secretary  of  the  Treasury  of  the 
United  States,  and  a  protest  filed  with  him  against  the  payment  of 
said  bonds  and  coupons,  unless  presented  for  payment  by  proper  au- 
thority of  the  State  of  Texas."  The  New  York  Tribune,  October  10, 
1865.  This  notice  appeared  above  the  signature  of  Governor  Hamilton, 
and  it  is  possible  that  he  may  have  written  it. 

"The  treasury  department  was  influenced  by  the  plea  that  the  loan 
had  been  made  in  good  faith,  and  the  number  of  bonds  redeemed 
showed  that  an  attempt  was  made  to  reimburse  the  firm  to  the  extent 
of  its  outlay.     7  Wallace,  715-716. 


30  Texas  v.  White 

brought  with  him  a  letter  from  Governor  Hamilton  and  a 
report  from  the  comptroller  of  the  treasury,  both  favorable 
to  the  payment  of  the  bonds  by  the  government.40  These 
documents  overcame  whatever  hesitancy  the  firm  had,  and, 
on  the  security  of  the  eight  bonds  already  deposited  with  the 
treasury  department,  Chiles  secured  $4,125  as  an  additional 
loan. 

The  attitude  of  the  United  States  treasury  department 
toward  these  bonds  was  not  consistent.  At  one  time,  payment 
was  refused,  and  at  another  it  was  promised.47  Finally, 
after  the  holders  became  insistent,  Secretary  McCulloch  or- 
dered the  comptroller,  R.  W.  Tayler,  to  make  a  report  on  the 
subject  and  submit  recommendations  as  to  the  proper  course 
to  follow.  Such  a  report  was  made,  and  it  revealed  careful 
investigation  into  the  entire  matter.  Tayler  recommended 
that  the  bonds  be  paid.  In  accordance  with  this  suggestion, 
the  secretary  ordered  that  payment  be  made  on  all  bonds  of 
this  character  that  were  presented.  To  this  the  Texas  agents 
entered  a  strong  protest.48  They  also  carried  the  matter  to 
the  President,  insisting  that,  by  executive  order,  he  forbid  pay- 
ment of  the  bonds,  that  White  be  arrested,  and  that  his  pardon 
be  withheld.  President  Johnson  declined  to  be  drawn  into 
a  controversy  over  White,  or  "to  administer  the  affairs  of 
Texas."49     Finding  appeal  to  the  President  of  no  avail,  the 

46  Chiles  had  also  approached  J.  R.  Barrett,  a  friend  of  Governor 
Hamilton,  and  had  made  him  an  offer.  Barrett  consulted  Hamilton 
and  was  advised  to  accept  the  proposition.  This  advice  the  governor 
finally  embodied  in  a  letter  to  Barrett.  "Dear  Sir :  In  reply  to  your 
question  about  Texas  indemnity  bonds  issued  by  the  United  States,  I 
can  assure  you  that  they  are  perfectly  good,  and  that  the  gov't  will 
certainly  pay  them  to  the  holders.     Yours  truly,  A.  J.  Hamilton." 

47  See  Comptroller  Tayler's  special  report  on  this  subject,  1866.  Op. 
cit. 

48  These  agents  were  Epperson  and  Walton. 

49  White  was  one  of  the  southerners  who,  possessing  more  than 
$20,000  in  wealth,  had  to  make  personal  application  for  pardon.  Later 
Paschal  complained  that  White  "seemed  to  be  one  of  the  influential 
men  at  the  'White  House,'  having  access  at  all  times."  According  to 
a  statement  of  the  late  Judge  A.  W.  Terrell,  of  Texas,  to  Professor 
Charles  W.  Ramsdell,  of  the  University  of  Texas,  White  was  a 
Tennessee  friend  of  Johnson.    Judge  Terrell  said  that  White  not  only 


History  of  the  Cask  31 

agents  appeared  again  before  the  comptroller,  and  submitted 
a  long  argument  against  payment  of  the  bonds.  They  were 
informed  that,  unless  the  State  took  legal  action  within  one 
week,  the  bonds  would  be  redeemed  in  behalf  of  the  holders. 
Legal  proceedings  were  instituted  at  once,  and  the  result  was 
the  case  of  Texas  v.  McCulloch.  which  was  dismissed  on 
February  19,  1867.50  Then  many  of  the  outstanding  bonds 
were  paid. 

The  records  of  the  treasury  department  show  that  the 
Hardenberg  bonds  were  redeemed  at  that  time.  Although 
this  was  technically  the  case,  the  entry  in  the  books  did  not 
describe  the  conditions  of  payment,  and  the  real  history  of 
the  transaction  did  not  become  known  until  later.  It  was 
accomplished  only  after  McCulloch  and  Hardenberg  had 
reached  a  private  agreement.  The  secretary  hesitated  to  pay 
the  bonds,  because  there  was  a  possibility  that  Texas,  after 
the  State's  case  had  been  tried  upon  its  legal  merits  before 
the  Supreme  Court,  might  begin  a  suit  against  him  for  dama- 
ges and  restitution.  Congressman  S.  S.  Cox,  then  repre- 
senting Hardenberg,  proposed  an  arrangement  whereby  the 
secretary  would  be  protected  should  this  eventuality  occur. 
According  to  this  plan,  Hardenberg  was  to  receive  payment 
of  the  bonds  in  gold.  He  was  then  to  deposit,  in  some  bank, 
in  United  States  bonds  known  as  "seven-thirties"  a  sum 
equal  to  that  paid  to  him  in  redemption  of  his  Texas  bonds,51 
of  which  the  secretary  of  the  treasury  was  made  a  trustee, 
and  which  was  to  revert  to  him  in  case  of  a  suit  being  de- 
cided against  the  validity  of  Hardenberg's  title  to  the  Texas 
bonds,  and  in  case  the  United  States  treasury  was  held  ac- 
countable  for  the  amount  paid   in   redemption. 

secured  his  pardon  easily,  but  actually  resided  for  a  time  in  the  White 
House;  that  when  he  (Terrell)  returned  from  Mexico  in  1866  and 
went  to  Washington  to  get  his  own  pardon,  he  found  White  staying 
at  the  White  House. 

"7  Wallace,  714. 

'  Later  these  "seven-thirties"  were  exchanged  and  "five-twenties"  of 
an  equal  amount  substituted.  See  Texas  v.  White,  7  Wallace,  713-714; 
Texas  v.  J/ardcnben/,  10  Wallace,  73-77. 


CHAPTER  II 

THE  ARGUMENT  OF  THE  LAWYERS 

The  case  was  argued  by  G.  W.  Paschal  and  R.  T.  Merrick 
for  Texas;1  and  contra,  by  Philip  Phillips  for  White,  Albert 
Pike  and  associates  for  Chiles,  J.  W.  Carlisle  for  Hardenberg, 
and  James  W.  Moore  for  Birch,  Murray  &  Company.  All 
of  these  gentlemen  were  prominent  members  of  the  Supreme 
Court  bar,  and,  as  such  were  lawyers  of  marked  ability. 
The  unique  character  among  them  was  the  soldier,  poet, 
and  lawyer,  Albert  Pike,  who  a  short  while  before  had  served 
with  distinction  as  a  general  in  the  armies  of  the  Confederacy. 
With  him  were  joined  his  partner  R.  W.  Johnson,  and  James 
Hughes. 

The  bill  as  made  out  by  Paschal  and  Merrick  set  forth 
the  case  of  Texas.  It  may  be  divided  into  six  parts  as 
follows :  First,  that  the  bonds  were  seized  by  an  unlawful 
combination  of  persons  in  armed  hostility  to  the  government 
of  the  United  States.  Second,  that  the  bonds  were  sold  to 
White  and  Chiles  for  the  purpose  of  aiding  the  Confederate 
authorities  in  overthrowing  that  government.  Third,  that, 
granting  the  legality  of  these  proceedings,  White  and  Chiles 
had  not  fulfilled  the  requirements  of  their  contract  with  the 
Military  Board.  Fourth,  that  the  bonds  were  not  properly 
indorsed,  and  consequently  might  be  identified.  Fifth,  that 
the  bonds  were  matured,  and  that  payment  was  overdue. 
Sixth,  that  the  later  transfers  to  Hardenberg  and  others  were 
not  made  in  good  faith. 

The  answers  of  White  and  Chiles,  which  were  very  much 
alike,  may  also  be  summarized  under  six  heads.  First,  that 
Paschal  and  Merrick  had  shown  no  written  warrant  of  attor- 
ney as  evidence  of  their  authority  to  represent  Texas  in  pro- 
ceedings of  this  nature.  Second,  that  Texas,  by  seceding 
from   the  Union   and   later   waging   war   against   the   United 


1  Paschal   and   Merrick   were  assisted  by  R.   J.   Brent  and   George 
Taylor. 


The  Argument  of  the  Lawyers  33 

States,  had  lost  the  status  of  a  State  in  the  American  Union, 
and,  therefore,  had  no  right  to  sue  in  the  Supreme  Court. 
Third,  that  the  Texas  government,  whether  de  facto  or  de 
jure,  had  entered  into  a  contract  which  it  could  not  now 
repudiate.  Fourth,  that  the  indorsement  of  the  bonds  by 
the  governor  was  not  necessary  to  render  them  negotiable. 
Fifth,  that  circumstances  over  which  White  and  Chiles  had 
no  control  had  made  it  impossible  for  them  to  fulfill  their 
contractual  obligations.  Sixth,  that  prior  to  the  transfers 
of  the  bonds  to  other  parties  they  had  no  definite  information 
that  Texas  intended  to  contest  their  title. 

Such  was  the  case  when  it  came  up  for  final  argument. 
It  will  be  seen  that  there  were  four  questions  involved,  and 
that  each  in  turn  came  up  for  adjudication  by  the  court. 
First,  a  preliminary  one  of  minor  significance, — whether  Pas- 
chal and  Merrick  could  show  sufficient  authority  to  prosecute 
in  the  name  of  Texas.  Although  there  was  much  wrangling 
about  this  question  of  authority,  it  was  not  serious ;  the  en- 
tire discussion  about  it  was  mere  legal  by-play.  The  second 
however,  was  far  more  important.  This  was  a  question  of 
jurisdiction, — whether  or  not  Texas  was  a  State  in  the  Union 
when  the  suit  was  filed,  and  thus  competent  to  be  heard  in 
an  original  case  before  the  Supreme  Court.  Third,  whether 
an  injunction  was  to  be  granted  against  the  persons  named. 
Fourth,  as  to  the  effect  produced  by  the  payment  of  certain 
of  the  indemnity  bonds  by  the  United  States  treasury. 

Of  these  questions,  the  second  was  of  the  greatest  import. 
In  deciding  it,  the  court  was  to  place  on  record  a  precedent 
of  fundamental  and  permanent  value.  Was  Texas  a  State 
in  the  Union?  If  not,  the  case  must  be  dismissed  because  of 
the  constitutional  limitation  as  to  the  original  jurisdiction  of 
the  Supreme  Court.  The  most  important  questions  occasioned 
by  the  war  were  involved,  and  it  was  necessary  for  the  court 
to  consider  them  in  order  to  determine  and  formulate  the 
constitutional  principles  emerging  from  those  extraordinary 
conditions.  Concerning  this  question  of  jurisdiction  was 
waged  one  of   the  great  battles  of   our   legal   history.     The 


34  Texas  v.  White 

briefs  of  the  various  lawyers  covered  several  hundred  pages, 
so  carefully  and  exhaustively  were  the  details  treated.2 

Paschal  based  his  theory  and  constitutional  interpretation 
upon  the  postulate  that :  The  Union  is  indestructible  and 
indissoluble;  that  Texas  had  surrendered  all  rights  of  self- 
determination  when  she  entered  the  Union,  and  all  acts  in 
contravention  of  that  surrender  were  null  and  void.  He 
contended  that 

The  State  as  a  State  did  not  and  could  not  rebel  against  the 
United  States.  But  the  magistrates  of  the  State,  including 
the  Legislature,  refused  to  take  the  oath  required  by  the 
Federal  Constitution  [and]  took  an  oath  to  support  the  pre- 
tended government  at  war  with  the  United  States. 
The  secession  ordinance  was  void ;  the  attempted  dissolution  of 
the  Union  was  void ;  the  relation  to  the  new  Confederacy  was 
void ;  all  legislation  in  opposition  to  the  Constitution,  treaties 
and  laws  of  the  United  States,  was  void;  and,  therefore,  the 
body  politic  no  more  ceased  to  be  a  State  in  the  Union  than 
was  the  vast  domain  geographically  elided  from  the  bound- 
aries of  the  United  States. 

Through  all  the  manifold  changes  undergone,  the  status  of 
Texas  as  a  State  in  the  Union  remained  the  same ;  and  all 
efforts  at  alteration  were  of  no  effect,  because  they  had  no 
standing  in  law.  This  was  very  largely  an  echo  of  the 
popular  view  in  the  North,  and  it  doubtless  possessed  in  the 
eyes  of  the  court  the  great  weight  derivable  from  the  approval 
of  public  opinion. 

Phillips,  in  opposition,  invited  the  attention  of  the  court 
to  the  facts  in  the  history  of  Texas  since  the  adoption  of  the 
ordinance  of  secession,  and  insisted  that  these  facts  did  not 
justify  the  claim  that  she  remained  a  State  throughout  this 
period.     The  definition  of  a  "State,"  under  the  Constitution, 


2  The  arguments  of  Paschal,  Merrick,  Pike,  Phillips,  Hughes,  and 
the  other  lawyers  may  be  found  in  an  abridged  form  in  25  Texas 
(Supplement)  Reports.  In  a  complete  form  they  can  be  found  in  the 
file  of  briefs  in  the  Supreme  Court  library  at  Washington  and  in  the 
library  of  the  New  York  Bar  Association.  Since  the  litigation  con- 
nected with  this  case  covers  a  number  of  years,  the  briefs  were  collected 
in  the  volume  for  1876.    File  Copy  of  Briefs,  1876,  1  Org'l— 22  Org'l. 


The  Argument  of  the  Lawyers  35 

would  not  permit  the  admission  of  such  a  claim.  The  defi- 
nition to  which  he  appealed  was  firmly  imbedded  in  the  opin- 
ions of  the  Supreme  Court  and  had  been  accepted  as  a  maxim 
of  constitutional  law,  and  these  opinions  were  uniformly  and 
consistently  against  the  present  pretensions  of  Texas.  In  the 
famous  case  of  Hepburn  and  Dundass  v.  Ellxcy,  Chief  Justice 
Marshall  had  held  that  the  term  "State,"  in  the  American 
Union,  connoted  something  of  a  nature  in  many  respects  sepa- 
rate and  distinct  from  that  usually  given  to  it  in  treatises  on 
general  or  international  law.3  The  Constitution  of  the  United 
States  contemplates  a  political  body  which  is  entitled  to  repre- 
sentation in  the  Senate  and  House  of  Representatives,  and  to 
the  appointment  of  presidential  electors.  The  "political  body" 
in  this  Union  which  is  possessed  of  these  rights  is  a  State. 
This  case,  according  to  Phillips,  presented  a  clear  and  well 
defined  test  which  would  demonstrate  whether  or  not  Texas 
at  that  time  was  a  "State"  in  the  constitutional  sense  of  the 
word.  The  principle  to  which  this  advocate  referred  had  been 
upheld  and  approved  in  other  cases,  and  so  far  as  time  could 
give  it,  the  opinion  had  the  unquestioned  sanctity  of  legal 
precedent.4     Continuing  this  argument,  he  inquired : 


3  2  Cranch,  452. 

4  The  decision  was  specifically  upheld  in  New  Orleans  v.  Winter  (1 
Wheaton,  91)  and  in  Scott  v.  Jones  (5  Howard,  343).  It  is  pertinent 
to  introduce  here  a  statement  of  some  of  the  other  definitions  of  a 
"state"  under  the  Constitution.  In  Chisholm  v.  State  of  Georgia  (2 
Dallas,  419),  a  state  was  defined  as  "a  complete  body  of  free  persons, 
united  together  for  their  common  benefit,  to  enjoy  peaceably  what 
is  their  own,  and  to  do  justice  to  others."  This  definition  was  ex- 
panded in  the  great  case  of  Pcnhallow  v.  Doanc  (3  Dallas,  93),  so 
that  a  "state,"  in  its  most  enlarged  sense,  means  the  people  composing 
a  particular  nation  or  community.  In  that  sense  is  the  whole  people 
united  in  one  body  politic,  and  thus  the  "state"  and  "the  people  of  the 
state"  are  equivalent  expressions.  This  last  case  had  an  interesting 
bearing  upon  certain  points  of  the  controversy  we  have  been  consider- 
ing. What  were  "the  people  of  the  state?"  Does  a  true  republican 
form  of  state  government  require  the  participation  of  the  whole  people? 
And  finally  if  the  people  constitute  the  state,  is  the  action  of  the  people 
the  action  of  the  state?  Such  a  deduction  was  disquieting  to  those 
who  denied  the  de  facto  participation  of  the  state  in  the  efforts  to  se- 
cede.   It  was,  therefore,  a  dangerous  precedent  for  all  parties. 


36  Texas  v.  Whits 

Now  what  is  the  condition  of  Texas?  She  is  denied  the  right 
of  representation  in  Congress,  and  all  power  to  appoint  elec- 
tors. Her  State  government  is  declared  to  be  illegal.  All 
authority  to  govern  her  is  lodged  in  a  military  commander; 
civil  tribunals  are  made  subservient  to  his  dictation;  a  pro- 
visional government  is  appointed  by  the  President  according  to 
military  authority.  This  condition  is  wholly  inconsistent  with 
the  idea  that  there  remains  with  the  people  of  Texas  any  politi- 
cal power  whatever,  or  that  they  are  entitled  to  any  of  the 
guarantees  of  the  Constitution  of  the  United  States.  .  .  . 
If  the  laws  which  deprive  her  of  these  rights  and  impose 
these  qualifications  are  valid — that  is,  if  she  is  not  entitled 
to  representation  in  Congress,  and  a  voice  in  the  choice  of 
electors,  then  I  maintain  that  she  is  not  a  member  of  the 
Union,  that  she  is  not  a  State  within  the  sense  of  this  juris- 
dictional provision.5 

This  argument  placed  an  alternative  before  the  court  which 
demanded  either  the  adoption  of  Thaddeus  Stevens'  con- 
quered-province  theory  or  the  repudiation  of  the  action  of 
Congress.  In  the  quaint  and  involved  language  of  General 
Pike,  we  may  find  the  theory  of  Stevens  advocated  for  adop- 
tion by  the  court : 

It  seems  to  us  that  if  the  right  to  secede  did  not  exist,  con- 
tradictions if  not  absurdities,  can  only  be  avoided,  by  holding 
that  the  people  of  the  State,  constituting  and  being  the  State, 
did  secede  in  fact ;  that  the  State  government  being  unchanged, 
its  acts  were  the  acts  of  the  people  of  Texas,  done  through 
their  chosen  agents;  that,  when  the  Confederacy  was  ac- 
knowledged to  be  a  belligerent  Power,  there  was  no  longer  a 
rebellion,  but  a  war,  a  public,  not  a  civil,  war ;  that  after  con- 
quest, the  status  of  rebels  and  traitors  could  not,  for  any 
purpose,  be  reimposed  upon  the  people  of  Texas;  since,  if  it 
could,  General  Lee,  having  been  paroled,  could  not  be  tried 
for  treason,  while  Mr.  Stephens,  who  was  but  a  civil  officer, 
could ;  that  the  United  States  may  exercise  the  rights  of  con- 
quest over  what,  being  conquered,  ceased  at  once  to  be  a  State, 
and  became  a  province,  without  any  right  of  readmission  into 
the  Union.     .     .     . 

General   Pike  was  impatient  with  that  line  of  reasoning 
which  sought  to  justify  the  actions  of  the  President  and  of 

5  Phillips'  Brief,  4. 


The  Argument  of  the  Lawyers  37 

Congress,  while  at  the  same  time  asserting  that,  during  these 
activities,  the  existence  of  Texas  as  a  State  remained  un- 
impaired and  uninterrupted.  With  some  indignation,  he  re- 
lated the  story  of  Texas  under  the  domination  of  the  military 
government,  which  he  described  as  government  by  "pro- 
consuls." As  to  the  effect  of  the  operation  of  the  Reconstruc- 
tion laws,  he  said  :6 

We  do  not  say  that  all  this  is  not  warranted  by  the  title  of 
conquest,  or  that  it  is  not  right  and  just  in  itself.  We  only  say 
that  Texas  has  been  and  is  governed  under  the  title  of  con- 
quest, and,  therefore,  is  not  a  State.  .  .  .  It  is  not  the 
question,  therefore,  whether  Texas  is  rightfully  excluded  from 
the  Union  and  governed  as  a  province,  but  whether  it  is  so 
in  fact.  Congress  may  deny  it  the  right  to  sue  here  as  a 
State,  with  precisely  the  same  right  that  it  can  refuse  the 
right  of  representation.  It  can  not  be  a  State  for  the  purpose 
of  suing  here  and  not  a  State  for  the  purpose  of  taking  part 
in  the  legislation  of  the  country.  .  .  .  Incapacitated  to  do 
one,  it  is  incapacitated  to  do  the  other. 

Merrick  took  a  quite  different  attitude,  and  presented  a 
different  line  of  argument.  Concerning  the  status  of  Texas, 
he  admitted  that  the  facts  indicated  a  change  in  the  form  of 
government.  He  argued  from  the  leading  case  of  Luther  v. 
Borden  that  sovereignty  resides  in  the  people  of  the  State  and 
they,  by  virtue  of  their  inherent  right  and  power,  may  change 
the  form  of  government.7  The  question  as  to  the  validity  of 
this  change  is  one  to  be  decided  by  the  political  power  in  the 
United  States  government,  and  the  courts  are  bound  to  follow 
the  decision  rendered  by  that  power.  The  political  power  has 
declared  that  the  attempted  secession  was  invalid.  It  was, 
therefore,  void.  The  government  of  Texas  as  organized  by 
the  President  and  under  which  Throckmorton  had  been  elected 
governor,  had  been  recognized  by  the  executive  and  legis- 
lative departments.  The  Supreme  Court  was,  therefore, 
estopped  from  further  inquiry  into  the  status  of  that  govern- 
ment. 

0  Pike's  Brief,  10;  25  Texas  (Supp.)   Reports,  512. 
7  7  Howard,  1. 


38  Texas  v.  White 

The  argument  as  to  the  merits  of  the  case  turned  on  the 
question  of  the  legal  validity  of  the  contract  between  the  Mili- 
tary Board,  representing  an  illegal  government,  and  White  and 
Chiles.  Paschal  and  Merrick  contended  that  after  Texas  had 
passed  the  ordinance  of  secession,  in  1861,  the  State  govern- 
ment was  in  rebellion  against  the  United  States,  and  that  it 
could  not  acquire  any  legal  title  to  the  bonds  which  were 
found  in  the  State's  treasury.  The  purpose,  moreover,  of  such 
a  utilization  of  the  bonds  had  been  to  injure  the  federal  gov- 
ernment and  to  destroy  the  Union.  This  manifestly  treason- 
able intention  removed  whatever  semblance  of  legality  there 
might  otherwise  have  been  to  the  transaction. 

The  defense  urged  that,  in  case  Texas  was  a  State,  she 
had  by  her  chosen  agents  empowered  the  Military  Board  to 
act,  and  that  now  the  State  could  not  ex  post  facto  deny  its 
own  laws  and  contracts.  Furthermore,  it  could  not  be  claimed 
that  only  certain  misguided  and  disloyal  people,  not  'the 
State,  were  acting.  It  was  maintained  that  "a  State  can  only 
act  through  its  agents,  and  it  would  be  absurd  to  say  that  any 
act  was  not  done  by  the  State  which  was  done  by  its  author- 
ized agents. "s  If  Texas  was  a  State,  then  for  the  purposes 
of  this  case  it  was  the  same  State  that  existed  when  the  con- 
tract was  made.  Phillips  held  that  the  ordinance  of  secession 
had  only  dissolved  the  relations  of  the  State  to  the  national 
government,  and  that  the  State  government  was  left  intact. 
In  this  condition,  the  relationship  of  the  people  to  the  State 
government  had  been  the  same,  and  an  act  of  that  government 
was  as  much  an  expression  of  the  people's  will  as  before. 
Such  being  the  case,  he  applied  the  established  doctrine  :9 


8  Briscoe  v.  The  Bank  of  the  Commonwealth  of  Kentucky,  11  Peters, 
318. 

"This  principle  has  been  upheld  by  the  Supreme  Court.  In  White 
v.  Cannon  (6  Wallace,  443),  the  court  had  held  that  a  judgment  of  the 
Supreme  Court  of  Louisiana,  rendered  some  days  after  secession  of  the 
State,  was  valid.  This  was  based  on  the  assumption  that  the  ordinance, 
being  an  absolute  nullity,  was  inoperative.  Later,  in  United  States  v. 
The  Insurance  Companies  (22  Wallace,  99),  J.  Strong,  speaking  of  the 
so-called  rebel  legislatures  of  Georgia,  said:  "If  not  a  legislature  of 
the  State  de  jure,  it  was  the  only  law-making  body  which  had  any  exis- 


The  Argument  of  the  Lawyers  39 

A  nation  or  State  can  not  by  changing  its  government,  which  is 
the  organ  of  its  will,  disengage  itself  from  its  obligations  nor 
forfeit  the  benefits  of  its  treaties  or  contracts. 

The  answer  of  the  State's  attorneys  to  this  argument  was 
an  appeal  to  political  theory.  A  State  and  its  government  are 
not  one  and  the  same.  The  government  sold  the  bonds,  but 
the  State  was  not  bound  by  the  contract.  Just  as  the  State 
had  remained  unaffected  by  the  disloyal  practices  of  the  in- 
dividuals who  seized  the  government,  it  was  likewise  free 
from  responsibility  for  any  contracts  made  in  furtherance  of 
the  rebellion.  A  corollary  of  this  logic  is  that  a  change  in  the 
form  of  the  government  of  a  State  is  not  a  change  in  the 
essence  of  that  State. 

The  argument  of  the  defense  would  probably  have  proved 
too  powerful  for  successful  contradiction  had  it  been  possible 
to  demonstrate  that  the  contract  had  been  made  for  peaceful 
purposes.  The  lawyers  submitted  a  very  learned  argument  to 
support  this  idea,  but  it  failed  to  carry  conviction.  They 
claimed  that  the  contract  had  not  been  made  to  assist  the  rebel 
government,  but  for  a  humanitarian  purpose ;  that  "defence 
of  the  State"  had  no  necessary  reference  to  a  defence  of  the 
Confederacy.  However  plausible  and  astute  this  line  of  reas- 
oning might  be,  the  history  of  the  case,  as  presented  by  the 
State,  was  convincing  to  the  contrary ;  and  it  came  to  be  recog- 
nized by  the  court  that  the  contract  was  made  with  the  inten- 
tion of  aiding  the  rebel  cause.  The  failure  to  establish  inno- 
cence of  disloyalty  in  the  contracting  parties  proved  an  insuper- 
able obstacle  to  what  should  have  otherwise  been  a  decisive 
argument. 


tence.  Its  members  acted  under  color  of  office,  by  an  election,  though 
not  qualified  according  to  the  requirements  of  the  Constitution  of  the 
United  States."  It  was  accordingly  held  that  a  corporation  chartered 
by  this  legislature  for  the  purpose  of  conducting  an  insurance  business, 
not  in  hostility  to  any  of  the  provisions  of  the  Constitution,  was  a  legal 
body,  with  authority  to  sue  in  the  United  States  courts  All  the  ads  of 
the  de  facto  legislature,  not  in  conflict  with  the  interests  of  the  Union 
or  the  authority  of  the  general  government,  were  legal. 


CHAPTER  III 

the;  opinion  of  the  court 

The  opinion  of  the  court  was  read  by  Chief  Justice  Chase 
on  April  15,  1869.  The  case  had  attracted  attention  from  all 
sections  of  the  country,  and  it  was  expected  that  a  great 
working  principle  of  law  would  emerge  from  the  clash  of  vital 
forces.  The  interests  immediately  involved  were  inconsider- 
able in  importance,  but,  in  order  to  justify  in  some  measure  the 
course  of  that  branch  of  the  government  which  at  the  time 
was  pre-eminently  strong,  it  was  necessary  to  depart  from 
established  precedent  and  legal  tradition.  The  opinion  was  of 
political  significance ;  and  the  public  awaited  the  contribution 
to  constitutional  law  and  political  theory  with  interest  and, 
probably,  on  the  part  of  some,  with  anxiety.  At  the  outset, 
the  court  acknowledged  that,  in  view  of  the  varied  interests 
and  division  of  public  opinion,  it  did  not  expect  to  satisfy  the 
judgments  and  anticipations  of  all. 

I 
We  are  very  sensible  of  the  magnitude  and  importance  of 
this  question,  of  the  interest  it  excites,  and  of  the  difficulty, 
not  to  say  impossibility,  of  so  disposing  of  it  as  to  satisfy  the 
conflicting  judgments  of  men  equally  enlightened,  equally 
upright,  and  equally  patriotic. 

Some  idea  of  the  importance  of  the  case,  both  to  contemporary 
and  subsequent  legal  history,  may  be  derived  from  the  estimate 
placed  upon  it  by  the  Chief  Justice.  He  always  considered  it 
the  greatest  case  in  which  he  figured  while  on  the  bench,  and, 
likewise,  the  opinion  as  the  greatest  he  ever  wrote.1 

The  Question   of  Authority 

After  a  preliminary  review,  in  which  the  conditions  and 
circumstances  out  of  which  the  case  arose  were  briefly  men- 
tioned, the  court  proceeded  to  decide  the  question  of  authority 
raised  by  the  defendants.  As  has  been  stated  previously, 
Paschal  had  been  appointed  solicitor  and  agent  of  the  State 

1  Hart,  Chase,  378. 


The  Opinion  of  the  Court  41 

by  the  provisional  governor,  A.  J.  Hamilton.  After  the  acces- 
sion of  Throckmorton,  in  1866,  Paschal's  service  as  legal  rep- 
resentative of  Texas  terminated,  and,  although  his  advice  and 
assistance  were  retained,  Epperson  was  appointed  in  his  stead. 
Epperson  had  instituted  the  suit  before  the  Supreme  Court. 
Governor  Throckmorton  had  written  a  letter  ratifying  this 
action  in  the  name  of  Texas.  When  Throckmorton  was  super- 
seded by  Pease,  Paschal  resumed  the  office  of  agent  and 
continued  the  legal  action  before  the  court.  His  efforts  had 
the  express  sanction  and  confirmation  of  the  governor.  Tt 
seems,  therefore,  that,  if  the  government  of  Texas  was  legal, 
the  attorneys  had  sufficient  power  and  authority  to  act  for  the 
State.  These  facts,  at  any  rate,  were  sufficiently  strong  and 
clear  to  determine  the  decision  of  the  question.  The  court 
promptly  dismissed  the  plea  of  Chiles,  on  the  ground  that  the 
acts  of  the  State  authorities  served  to  dispel  any  doubt  as  to 
the  legal  right  of  the  prosecuting  attorneys.  Since  the  intro- 
duction of  this  plea  had  only  been  incidental  to  a  denial  of 
statehood  to  Texas  and  of  legality  to  her  government,  it 
would  or  would  not  be  substantiated  in  law  and  in  fact  accord- 
ing as  the  denial  was  sustained  or  dismissed  by  the  court. 

The  Question  of  Jurisdiction 
1.     The  American   State 

The  question  of  jurisdiction  was  not  so  easily  decided.  As 
has  been  suggested,  the  decision  of  this  question  involved  the 
most  complicated  and  important  points  of  the  case,  and  made 
it  memorable  in  the  history  of  American  jurisprudence.  In 
the  early  days  of  the  Union,  there  was  little  or  no  attempt  to 
define  the  nature  or  meaning  of  the  term  "state."  What  con- 
stituted a  State  in  the  American  Union  at  the  time  of  the 
adoption  of  the  constitution  was  too  well  understood  for  the 
leaders  and  framers  to  trouble  themselves  with  the  evolution 
and  formulation  of  a  carefully  and  finely  worded  definition. 
One  preliminary  source  of  difficulty  and  doubt  which  had  been 
encountered  in  the  arguments  of  the  case  in  connection  with 
this  point  lay  in  this  absence  from  the  Constitution  and  public 


42  Texas  v.  White 

law  of  the  country  of  a  clear  and  comprehensive  definition  of 
the  word  "state";  and  it  was  necessary  that  such  a  definition 
should  be  formulated  before  the  court  could  decide  the  ques- 
tions of  legal  status  and  jurisdiction.     This  fault  of  omission 
the  court  therefore,  proceeded  to  remedy.     In  previous  cases, 
the  description  of  the  essential  elements  of  the  concept  "state" 
related  either  to  the  purposes  of  its  organization,  the  manner 
of    its    composition,    and    the    enumeration    of    its    functions, 
or    to    the    powers    and    privileges    of    States.      As    tests    to 
discover   whether   or   not   a   particular   political   body    was   a 
State  under  the  Constitution,  they  were  not  individually  re- 
liable  or  adequate.     There  must,   consequently,   be   a  gener- 
alization from  a  synthetic  consideration  of  the  various  uses 
made  of  the  word  in  the  Constitution.     The  word  had  not 
been  assigned  a  specific  meaning  there   or  in  the   works  of 
commentators  on  the  Constitution  and  government.    The  Chief 
Justice  was,  therefore,  correct  when  he  remarked  that  "the 
poverty  of  language  often  compels  the  employment  of  terms 
in  quite  different  significations ;  and  there  is  hardly  any  ex- 
ample  more   signal   to   be    found   than   in   the   word   we   are 
now  considering."2     He  then  pointed  out   that,   in  the   Con- 
stitution, "state"  most  frequently  expresses  the  idea  of  terri- 
tory, people,  and  government;  but  that,  in  some  instances,  it 
denotes  only  one  of  these  elements  or  features.     It  is  used 
in  its  territorial,  geographic  sense  in  the  requirement  that  a 
representative  in  Congress  shall  be  an  inhabitant  of  the  State 
in  which  he  is  elected.     It  is  also  used  in  that  sense  in  the 
section  which  provides  that  trials  for  crimes  shall  be  held  in 
the  State  in  which  the  crimes  were  committed.     It  is  employed 
in  the  sense  of  a  community  of  people  in  the  clause  which 
enjoins  upon  the  United  States  the  duty  of  protecting  each 
State  against  invasion,  and,  again,  in  that  which  guarantees  to 
each  State  a  republican  form  of  government.     In  the  sense 
of    government,    as    distinguished    from    territory    or    people, 
there  are  numerous  and  recurring  references.     Examples  of 
this  usage  are  to  be  found  in  the  prohibitions  of  power  to  the 

2  7  Wallace,  721. 


The  Opinion  of  the  Court  43 

States,  such  as  those  depriving  them  of  the  right  to  make 
treaties  with  foreign  governments,  of  emitting  bills  of  credit, 
or  of  laying  tonnage  duties.  Each  use  of  the  term  here  men- 
tioned has  the  sanction  and  approval  of  the  Constitution,  and 
any  definition  agreed  upon  by  the  court,  if  it  be  comprehensive, 
must  embrace  each  sense.  Proceeding,  therefore,  from  these 
particular  usages,  the  Chief  Justice  announced  the  following 
definition : 

A  State,  in  the  ordinary  sense  of  the  Constitution,  is  a  political 
community  of  free  citizens,  occupying  a  territory  of  defined 
boundaries,  and  organized  under  a  government  sanctioned 
and  limited  by  a  written  constitution,  and  established  by  the 
consent  of  the  governed. 

Chase  was  not  the  first  to  grasp  the  various  meanings  given 
by  the  Constitution  to  the  word  "state."  His  statement  is 
practically  identical  with  that  submitted,  in  1800,  by  James 
Madison.  At  an  early  date,  there  was  recognition  of  the  fact 
that  the  Constitution  employs  the  term  in  different  senses. 
After  acknowledging  a  lack  of  consistency  in  this  usage, 
Madison  said, 

Thus  it  sometimes  means  the  separate  sections  of  territory 
occupied  by  the  political  societies  within  each ;  sometimes  the 
particular  governments  established  by  those  societies ;  some- 
times those  societies  as  organized  into  particular  governments : 
and,  lastly,  it  means  the  people  composing  those  political 
societies,  in  their  highest  sovereign  capacity.3 

Madison,  as  did  Chase,  noticed  that  the  uses  of  the  word 
were  often  conflicting  and  regretted  that  the  language  is  not 
more  rich  in  words  to  convey  the  shades  of  meaning  desired 
in  the  treatment  of  scientific  matters.  "Although  it  might 
be  wished,"  he  said,  "that  the  perfection  of  language  ad- 
mitted les^  diversity  in  the  significations  of  the  same  words, 
yet  little  inconvenience  is  produced  by  it  where  the  true  sense 
can  be  collected  with  certainty  in  the  different  applications.1 


"Hunt  (editor),  Madison's  Works,  VI,  348. 
'  Ibid. 


44  Texas  v.  White 

It  is  almost  impossible  to  escape  the  conclusion  that  the  Chief 
Justice,  who  was  a  profound  student  of  Democratic  legal  and 
political  literature,  was  conversant  with  the  constitutional 
exegesis  of  Madison. 

In  the  light  afforded  by  the  definition,  the  court  examined 
the  history  of  Texas  since  her  secession  in  order  to  ascertain 
whether  or  not  she  had  lost,  during  that  period,  the  attributes 
therein  ascribed  to  a  State  in  the  American  Union.  The 
definition  was  sufficiently  broad  and  flexible  to  prevent  allus- 
ions to  a  specific  act  on  the  part  of  Texas  or  to  the  loss  of  a 
a  particular  privilege, — such  as  that  of  representation  in  Con- 
gress,— as  affecting  the  disestablishment  or  destruction  of  the 
State.  Such  questions  as:  had  Texas  by  the  acts  of  those 
who  directed  the  state  government  ceased  to  be  a  State?  if  not, 
had  the  State  ceased  to  be  a  member  of  the  Union?  or,  had 
not  the  acts  of  Congress,  in  denying  her  representation  and 
in  denouncing  her  government  as  illegal,  destroyed  the  State? 
could  not  be  answered  by  reference  to  this  definition.5  These 
matters  were  still  before  the  court  for  adjudication. 

Of  the  practical  results  of  secession,  the  court  said : 

In  all  respects,  so  far  as  the  objects  could  be  accomplished 
by  the  ordinances  of  the  convention,  by  acts  of  the  Legislature, 
and  by  votes  of  the  citizens,  the  relations  of  Texas  to  the 
Union  were  broken  up,  and  new  relations  to  the  new  govern- 
ment were  established  for  them. 

These  acts  were  undeniably  real  and  positive  in  fact ;  were 
they  so  in  law  ?  Not,  said  the  court,  to  the  extent  of  breaking 
the  union  between  the  State  and  the  United  States.  This 
union,  the  court,  in  harmony  with  previous  opinions,  held  to  be 
indestructible,  and,  thus,  it  was  not  dissoluble  by  any  act  of 
the  State,  the  government,  or  the  people.  Of  this  union,  the 
court  said : 


6  This  interesting  bit  of  constitutional  lexicography  is  important  as  a 
contribution  to  political  science  and  to  clarity  of  thought  with  respect 
to  a  term  of  doubtful  meaning,  but  what  influence,  if  any,  it  had  upon 
the  result  of  the  case  is  not  clear. 


The  Opinion  of  the  Court  45 

The  Union  of  the  States  never  was  a  purely  artificial  and 
arbitrary  relation.  It  began  among  the  colonies,  and  grew 
out  of  common  origin,  mutual  sympathies,  kindred  principles, 
similar  interests,  and  geographic  relations.  It  was  confirmed 
and  strengthened  by  the  necessities  of  war,  and  received 
form,  and  character,  and  sanction  from  the  Articles  of  Con- 
federation. By  these  the  Union  was  solemnly  declared  to 
"be  perpetual."  And  when  these  articles  were  found  to  be 
inadequate  to  the  exigencies  of  the  country,  the  Constitution 
was  ordained  to  "form  a  more  perfect  Union."  It  is  difficult 
to  convey  the  idea  of  indissoluble  unity  more  clearly  than  by 
these  words.  What  can  be  indissoluble  if  a  perpetual  Union, 
made  more  perfect,  is  not? 

Such  according  to  the  Court,  was  the  Union  created  by  the 
Fathers.  Although  the  Union  was  made  perpetual  by  the  Arti- 
cles of  Confederation  and  more  perfect  under  the  Constitution, 
it  had  not  operated  to  submerge  under  it  the  identity  and  separ- 
ate existence  of  the  constituent  members,  the  States.  In  de- 
claring such  to  be  the  conclusion  of  the  court,  the  Chief  Justice 
gave  expression  to  the  most  eloquent  passage  in  the  opinion, — 
a  passage  which  is  an  adornment  to  legal  literature. 

But  the  perpetuity  and  indissolubility  of  the  Union,  by  no 
means,  implies  the  loss  of  distinct  and  individual  existence, 
or  of  the  right  of  self-government  by  the  States.  Under  the 
Articles  of  Confederation  each  State  retained  its  sovereignty, 
freedom  and  independence,  and  every  power,  jurisdiction  and 
right  not  expressly  delegated  to  the  United  States.  Under 
the  Constitution,  though  the  powers  of  the  States  were  much 
restricted,  still,  all  powers  not  delegated  to  the  United  States, 
nor  prohibited  to  the  States,  are  reserved  to  the  States  re- 
spectively, or  to  the  people.  And  we  have  already  had  oc- 
casion to  remark  at  this  term  that  .  .  "without  the  States 
in  union,  there  could  be  no  such  political  body  as  the  United 
States."6  Not  only,  therefore,  can  there  be  no  loss  of  separate 
and  independent  autonomy  to  the  States,  through  their  union 
under  the  Constitution,  but  it  may  not  be  unreasonably  said 
that  the  preservation  of  the  States,  and  the  maintenance  of 
their  governments  are  as  much  within  the  design  and  care  of 
the  Constitution  as  the  preservation  of  the  Union  and  the 
maintenance  of  the  National  Government.    The  Constitution, 


County  of  Lane  v.  State  of  Oregon,  7  Wallace,  76. 


46  T^xas  v.  White: 

in  all  its  provisions,  looks  to  an  indestructible  Union,  com- 
posed of  indestructible  States. 

The  dictum  that  the  United  States  is  an  indestructible 
Union  composed  of  indestructible  States — is  the  expression  of 
a  thought  by  Chase  which  was  in  the  public  mind  of  the  time. 
The  idea  of  it  was  a  part  of  the  Lincoln- Johnson  theory  on 
which  the  War  was  fought,  and  it  had  been  variously  stated. 
In  the  famous  Johnson  message  of  1865,  the  idea  was  well  ex- 
pressed in  the  following  terms  : 

States  with  the  proper  limitations  of  power,  are  essential  to  the 
existence  of  the  Constitution  of  the  United  States.  The  per- 
petuity of  the  Constitution  brings  with  it  the  perpetuity  of  the 
States,  their  mutual  relations  made  us  what  we  are,  and  in 
our  political  system  this  connection  is  indissoluble.  The  whole 
can  not  exist  without  the  parts,  or  the  parts  without  the  whole. 
So  long  as  the  Constitution  of  the  United  States  endures,  the 
States  will  endure,  the  destruction  of  the  one  is  the  destruc- 
tion of  the  other ;  the  preservation  of  the  one  is  the  preser- 
vation of  the  other.7 

The  exact  form  of  the  expression  was,  so  far  as  the  writer 
is  aware,  original  with  Chase. 

In  this  passage,  the  court  announced  its  allegiance  to  the 
federal  system  of  government.  The  statement,  indeed,  came 
dangerously  near  an  open  espousal  of  the  doctrines  and  philoso- 
phy of  the  ante  helium  advocates  of  State  rights.  There  is, 
however,  a  great  and  fundamental  distinction  between  the 
theory  of  State  rights  here  defended  and  the  doctrine  of 
State  sovereignty  which  the  court  repudiated.  Thus  far, 
therefore,  the  court  held  that  the  war  had  not  destroyed  the 
identity,  the  individuality,  or  the  constitutional  rights  and 
powers  of  the  States.  The  judicial  department,  consequently, 
was  strenuously  opposed  to  the  Sumner  theory  of  State  suicide, 
since  it  declared  a  State  an  indestructible  entity.     Finally,  it 


7  Richardson,  Messages  and  Papers  of  the  Presidents,  VI,  355-356; 
for  authorship  of  this  famous  message,  see  Dunning  in  Mass.  Hist. 
Society  Proceedings,  Vol.  XIX,  395.  For  criticism  of  the  theoretical 
and  political  value  of  Chase's  phrase,  see  Burgess,  The  American  Com- 
monwealth, in  Pol.  Science  Quar.,  Vol.  I. 


The  Opinion  of  the  Court  47 

must  be  said  of  the  passage  that  it  is  a  glorification  of  the 
Union  and  the  federal,  in  contradistinction  to  a  consolidated, 
system  of  government. 

2.    The  Location  of  Sovereignty  in  the  United  States 

In  the  case  of  County  of  Lane  v.  The  State  of  Oregon, — a 
part  of  which  was  virtually  incorporated  in  the  case  of  Texas 
v.  White, — the  court  gave  expression  to  certain  ideas  relative 
to  the  nature  of  the  relationship  existing  between  the  States 
and  the  United  States.  In  such  connection,  attention  is  invited 
to  the  following  quotation  : 

The  people  of  the  United  States  constitute  one  nation,  under 
one  government,  and  this  government,  within  the  scope  of  the 
powers  with  which  it  is  invested,  is  supreme.  On  the  other 
hand,  the  people  of  each  State  compose  a  State,  having  its  own 
government,  and  endowed  with  all  the  functions  essential  to 
separate  and  independent  existence.  The  States  disunited 
might  continue  to  exist.  Without  the  States  in  Union  there 
could  be  no  such  political  body  as  the  United  States.8 

In  Texas  v.  White,  the  court,  as  has  been  pointed  out,  held 
that  the  successful  termination  of  the  war  by  the  Union  forces, 
although  establishing  the  perpetuity  and  indissolubility  of  the 
Union,  had  by  no  means  implied  that  the  constitutional  rights 
and  powers  of  the  several  States  had  been  abridged.  On  the 
contrary,  the  preservation  of  these  rights  and  powers  had  been 
and  continued  to  be  as  much  the  care  and  design  of  the  Consti- 
tution as  had  been  and  are  those  of  the  national  government. 
The  political  entity  to  which  these  rights  were  judicially  as- 
sured was  defined  as 

a  political  community  of  free  citizens,  occupying  a  territory  of 
defined  boundaries,  and  organized  under  a  government  sanc- 
tioned and  limited  by  a  written  constitution,  and  established  by 
the  consent  of  the  governed. 

The  court  further  declared  that  "it  was  the  union  of  such 
States,  under  a  common  constitution,  which  forms  the  distinct 
and  greater  political  unit,  which  the  Constitution  designates  as 


7  Wallace,  76. 


48  Texas  v.  White 

the  United  States."     The  grand  result  is :     An  indestructible 
Union  composed  of  indestructible  States. 

In  the  excerpts  here  quoted,  there  is  embodied,  in  general 
terms,  what  appears  to  be  the  Supreme  Court's  theory  of  the 
location  of  sovereignty  in  the  United  States.  There  is,  in  them, 
of  course,  no  speculation  concerning  the  nature  of  sovereignty, 
but  only  a  statement  of  its  exact  location  according  to  the  opin- 
ion of  the  court.  There  are  also,  it  would  seem,  the  ex  cathedra 
ideas  of  the  court  as  to  the  changes,  if  any,  which  were  effected 
in  this  location  by  the  late  war.  It  is  the  design  of  this  section 
of  the  paper  to  comment  briefly  upon  this  theory. 

Just  what  the  war  actually  accomplished  in  determining  the 
location  of  sovereignty  in  the  Union  has  caused  considerable 
difference  of  opinion.  This  result  was  possibly  the  inevitable 
consequence  of  the  complex  purpose  for  which  the  great  war 
was  fought.  The  Supreme  Court,  in  the  opinion  of  the  writer, 
enunciated  in  the  case  of  Texas  v.  White  its  theory  of  the 
location  of  sovereignty  under  the  Constitution,  and  of  the  effect 
of  the  war  thereon. 

This  theory  was  opposed,  in  many  respects,  to  those  which 
found  widest  acceptance  before  the  war.  According  to  the 
opinion  in  this  case,  sovereignty,  under  the  Constitution,  re- 
sides neither  in  the  people  en  masse  nor  in  the  individual  States. 
On  the  contrary,  it  is  organized  and  reposed  in  the  political 
peoples  of  the  several  States  in  Union.  Both  the  federalistic 
idea  that  the  people  as  a  whole,  irrespective  of  State  lines,  are 
sovereign  and  that  of  Calhoun  that  the  particular  State  is  sov- 
ereign are  renounced.  Instead,  the  court  declares  that  the 
rights  claimed  by  the  South  for  the  individual  State  are  pos- 
sessed by  all  the  States  as  a  collective  unit.  In  such  a  theory 
emphasis  must  be  placed  on  the  word  "union,"  and  in  making 
an  estimate  of  the  theory  the  great  use  and  historical  influence 
of  that  word  must  be  taken  squarely  into  account.  When  this 
theory  is  applied  to  the  words  of  the  preamble  of  the  Consti- 
tution, "We,  the  people  of  the  United  States  of  America,"  they 
mean  the  people  of  each  State  as  they  form  the  political  com- 
munity under  the  written  constitutions  of  those  States.    Under 


The  Opinion  of  the  Court  49 

this  conception,  the  term  "United  States"  becomes  surcharged 
with  meaning  and  significance.  It  is  in  these  States  united  that 
sovereignty  resides/'  in  an  indestructible  Union  of  indestructi- 
ble States.  Territorial  unity  and  integrity  and  permanency  of 
union  were  achieved,  but,  so  far  as  the  Constitution  was  con- 
cerned, the  powers  of  the  States  were  unimpaired.  There  was 
a  revolution,  therefore,  in  1861-1865  in  political  theory,  but 
not  in  law ;  for  the  above  interpretation  of  the  constitutional 
system,  it  is  to  be  presumed,  was  held  by  the  court  to  have 
been  the  proper  one  from  the  date  of  the  foundation  of  the 
government.  Such  is  the  theory,  as  I  see  it,  that  was  advanced 
by  the  Supreme  Court. 

The  following  rules  may  be  adopted  as  a  guide  in  the  search 
for  the  location  of  sovereignty :  In  the  first  place,  sovereignty, 
in  orderly  states,  resides  in  the  political  corporation  which 
actually  establishes  and  ordains  the  organic  law  and  which,  in 
accordance  with  the  means  and  methods  provided  by  that  law, 
possesses  the  power  to  amend,  supersede,  or  abolish  it  on  occa- 

8  Brownson,  American  Republic,  220  c t  scq.  In  reference  to  such  a 
theory,  he  argues,  "We  the  people  of  the  United  States." — Who  are 
this  people?  How  are  they  constituted  and  what  are  the  modes  and 
conditions  of  their  existence?  .  .  .  Are  they  the  people  of  the 
States  severally?  No;  for  they  are  called  the  people  of  the  United 
States.  Are  they  a  national  people  really  existing  outside  and  inde- 
pendently of  their  organization  into  distinct  and  mutually  independent 
States?  No;  for  they  define  themselves  to  he  the  people  of  the 
United  States.  If  they  had  considered  themselves  as  States  only,  they 
would  have  said,  "We,  the  States";  and,  if  independently  of  State 
organization,  they  would  have  said,  "We,  the  people  do  ordain,"  etc. 

"The  key  to  the  mystery  is  precisely  in  this  appellation,  United 
States,  which  is  not  the  name  of  the  country,  for  its  distinctive  name 
is  America,  hut  a  name  expressive  of  its  political  organization.  In 
it  there  are  no  sovereign  people  without  States,  and  no  States  without 
Union,  or  that  are  not  united  States.  The  term  united  is  not  part  of  a 
proper  name,  but  is  simply  an  adjective  qualifying  States,  and  lias  its 
full  and  proper  sense.  Hence,  while  the  sovereignty  is  and  must  he  in 
the  States,  it  is  in  the  States  united,  not  in  the  States  severally,  precisely 
as  we  have  found  the  sovereignty  of  tin-  people  is  in  the  people  col- 
lectively, or  as  society,  not  in  the  people  individually."  For  another 
statement  of  the  theory,  see  Hurd,  Theory  of  our  National  Existence. 
For  the  history  of  the  phrase  "We,  the  people,  etc.,"  see  the  journal  of 
the  constitutional  convention  and  llinu  (editor),  Madison's  Works. 
Ill,  23-25;  IV,  92  et  seq.;  Cralle  (editor),  Calhoun's  Works,  I,  13.5. 


50  Texas  v.  White 

sion;  secondly,  in  revolutionary  societies,  it  resides  in  the 
group,  however  organized,  which  assumes  and,  by  whatever 
means,  exercises  such  creative,  amendatory  or  destructive  pow- 
ers.10 Employing  this  guide,  let  us  now  see  if  the  theory  is 
historically  consistent  with  our  constitutional  experience.  There 
is  probably  no  fact  in  American  history  more  firmly  and  incon- 
trovertibly  established  than  that  the  Constitution  was  ratified 
and  the  general  government  set  up  by  virtue  of  the  acts  of 
eleven  States.  These  States  meeting  in  separate  conventions 
debated  the  Constitution  and,  impelled  by  various  motives  and 
reasons,  ratified  it.11  These  States  and  two  others  had  been 
previously  in  a  union  which  was  thereby  superseded  and 
abolished.  It  seems  that  there  can  be  no  question  that  had  more 
States  willed  it,  they  might  have  remained  out  of  the  new 
Union,  but  that  they  did  not  so  elect  is  a  matter  of  history. 
While  they  were  acting  in  the  high  capacity  of  ratifying  the 
Constitution,  however,  they  were  united  under  the  Confeder- 
acy; and,  had  the  States  refused  ratification,  it  is  to  be  pre- 
sumed that,  at  least  for  the  time  being,  the  Confederacy  would 
have  continued  its  existence.  That  Confederacy,  however,  was 
destroyed  when  the  ninth  State  ratified  the  Constitution, 
and  a  new  Union  in  which  there  were  eleven  members, 
instead  of  thirteen  as  formerly,  was  set  up.  It  is  popular 
among  certain  schools  of  historians  to  hold,  with  Chief 
Justice  Chase,  that  the  constitutional  Union  was  more 
"perfect"  than  the  "perpetual"  union  of  the  Confederation, 
was  merely  a  further  step  in  a  steady  process  of  govern- 
mental evolution,  and  that  they  were  thus  intimately  con- 
nected in  history.     Such  a  view  appears  to  me  to  be  erroneous 


10  The  wording  of  this  guide  for  the  location  of  sovereignty  is 
mine.  Authority  for  the  first  part  may  be  found  in  the  works  of 
Professor  Burgess  (Political  Science  and  Constitutional  Law)  and 
those  of  his  numerous  followers.  The  idea  is  more  clearly  stated  by 
Calhoun  (Works,  I,  138). 

u  Madison  held  that  the  States  in  convention  assembled  represented 
the  State  in  its  sovereignty.  See  letter  to  Judge  Spencer  Roane, 
Works,  IX,  66;  and  also  Works,  VI,  352.  In  the  latter  reference,  he 
remarked,  "The  State  governments  are  not  the  parties  to  the  com- 
pact, but  the  States  in  their  sovereign  capacity." 


The  Opinion  of  the  Court  51 

from  both  a  legal  and  an  historical  point  of  view.  The  Union  of 
the  Constitution  was  not  the  union  of  the  Confederation;  the 
one  destroyed  the  other  absolutely.  The  articles  of  Confeder- 
ation had  nothing  to  do  with  the  Constitution  except  in  the 
negative  way  of  producing  along  with  certain  economic  ills  the 
discontent  which  resulted  in  a  desire  for  a  stronger  national 
government.  Despite  the  fact  that  the  congress  of  the  Con- 
federation acquiesced  in  the  call  for  the  constitutional  conven- 
tion, the  framing,  adoption,  and  ratification  of  the  Constitution 
were  revolutionary.  The  old  union  existed,  it  is  true,  while  the 
means  of  its  destruction  were  being  forged,  but  it  ceased  to 
exist  so  far  as  public  law  is  concerned  at  the  very  moment 
that  the  ninth  State  ratified  the  Constitution.  The  members 
who  failed  to  ratify  resumed  an  independent  status.  We 
are  constrained,  therefore,  to  the  conclusion  that,  as  a 
matter  of  fact,  the  constituting  act  was  done  by  several 
of  the  States  united  for  the  time,  under  the  Confederacy, 
but  acting  separately  and  without  any  official  connection 
with  any  other  State.  The  ratifying  conventions,  further- 
more, were  elected  by  political  communities  in  which  the 
suffrage  qualifications  were  radically  different.1-  Since 
the  Constitution  did  not  establish  a  general  or  particular 
suffrage  qualification  for  the  convention  electors,  this  was  a 
matter  left  to  the  States  and  by  them  controlled.  So  far  as 
there  was  a  legal  election  for  such  conventions,  it  was  held 
under  State  laws ;  and  it  was  the  politically  organized  peoples 
of  the  various  States  who  chose  the  delegates  to  the  conven- 
tions. It  seems  clear,  also,  that  the  acts  of  the  conventions 
were  voluntary  to  the  extent  that  they  might  have  rejected 
the  Constitution  with  as  much  right  as  they  ratified  it. 
Whatever  the  motives  controlling  them,  whatever  the  political 
or  economic  forces  actuating  the  votes,  the  fact  is  plain  that 
the  Constitution  was  ratified  by  the  representatives  of  the 
political  communities  in  the  various  States.     Thus  the  people 


"Beard,   An   Economic   Interpretation   of   the    Constitution,  04-72; 
239-252;  McKinlcy,  Suffrage  in  the  American  Colonies. 


52  Texas  v.  White 

of  the  territories,  such  as  Ohio,  Kentucky,  and  Tennessee, 
took  no  corporate  part  in  the  establishment  of  constitutional 
government,  although  their  inhabitants  to  some  extent  were 
citizens  of  the  States  and  occupied  the  lands  which  in  part 
were  then  the  common  property  of  the  States.  Had  the  people 
at  large  been  those  referred  to  in  the  preamble  of  the  Constitu- 
tion,12 it  seems  but  logical  to  suppose  that  those  outside  the 
States  would  have  been  given  a  voice  in  the  establishment  and 
ordination  of  the  new  government. 

With  the  Constitution  ratified  by  the  States  in  the  union, 
and  the  government  set  in  operation  under  it,  it  is  pertinent  to 
inquire  where  the  power  resides  which  can  legally  change  the 
law.  The  Constitution  ordains  that  an  amendment  adopted  by 
a  two-thirds  majority  of  both  houses  of  Congress  and  ratified 
by  a  three-fourths  majority  of  the  States  effects,  to  that  extent, 
a  change  in  the  instrument.  An  alternative  process  is  pro- 
posed by  which  a  convention  called  by  Congress  at  the  request 
of  two-thirds  of  the  States  may  submit  amendments.  These 
propositions  are,  in  turn,  brought  before  the  States,  and,  in 
case  they  are  accepted  by  three-fourths  of  them,  the  organic 
law  is  again  altered,  modified,  or  enlarged.  Since  the  second 
method  has  become  obsolescent,  it  may  be  said  that  Congress 
is  endowed  with  the  power  of  initiation.  In  either  case,  the 
States  have  the  final  and  decisive  power  of  determining 
whether  such  amendments  shall  be  valid.  While  each  State 
acts  in  a  separate,  independent  manner,  the  validity  of  its 
ratification  or  rejection  arises  from  the  fact  that  the  State  is  a 
member  of  the  Union.  In  each  case,  also,  the  body  which 
decides  between  ratification  and  rejection  is  the  representative 
of  the  political  community  which  exists  within  the  boundaries 


12  The  historical  reason  for  the  usage  of  the  words,  "We,  the  people 
of  the  United  States,"  is  well  known,  but  it  has  not  been  considered  a 
proof  by  the  Nationalist  school  that  the  mass  of  Americans  were  not 
the  ones  referred  to.  The  reasons  above  stated  seem  demonstrative 
proof  to  the  writer  that  no  matter  who  was  "referred  to,"  it  was  the 
political  people  of  the  States  in  convention  assembled,  with  the  excep- 
tion of  Rhode  Island  where  the  Constitution  was  submitted  to  and 
rejected  by  the  electors  of  five  towns,  who  as  a  matter  of  fact  ratified 
and  ordained  the  Constitution. 


The  Opinion  of  the  Court  53 

of  the  State.  There  is  no  constitutional  requirement  which 
makes  the  electorate  of  one  State  similar  to  that  of  other 
States,  and,  as  a  matter  of  fact,  they  are  not  alike. 

It  will  be  profitable  to  narrow  this  investigation  for  the 
moment  to  a  consideration  of  legal  sovereignty, — that  is,  to  the 
law-making  and  law-executing  power.  In  this  restricted 
realm,  we  find  that  the  representatives  in  Congress  are  elected 
and  controlled, — so  far  as  there  is  a  control  through  election, — 
in  accordance  with  the  theory  of  the  Supreme  Court.  In  the  im- 
portant function  of  electing  Congressmen,  the  power  of  fixing 
the  suffrage  qualifications  resides  in  the  States.  The  elec- 
toral qualifications  in  such  instances  are  those  required  by 
the  States  for  participation  in  the  election  of  members  to  the 
most  popular  or  numerous  branch  of  the  State  legislature. 
With  such  restrictions  as  the  States  impose,  the  Representa- 
tives and  Senators  are  elected  by  the  people  of  the  several 
States.  In  spite  of  post  bclhan  amendments  and  efforts  of  the 
Republican  leaders  this  remains  a  fact.  In  the  States  there 
is  little  uniformity.  In  some,  women  are  admitted  to  the  suf- 
frage, in  others,  educational,  property,  and  tax  qualifications 
restrict  suffrage.  In  some  States  aliens  who  have  announced 
an  intention  of  becoming  citizens  vote  although  not  yet  citizens 
of  the  United  States.  In  the  case  of  the  Representative, 
the  State  has  the  power,  and  employs  it,  of  designating  the 
bounds  of  the  district.  It  is  often  said  that  he  is  the  repre- 
sentative of  the  people.  This  maxim  must  be  construed, 
however,  to  mean  that  he  represents  the  political  people 
of  the  State ;  and  it  is  a  significant  fact  that,  as  no  Con- 
gressional district  ever  overlaps  the  boundary  of  the  State, 
he  is  strictly  a  State  representative.  There  is,  to  sum  up. 
no  necessary  similarity  in  the  modes  prescribed  for  the 
election,  in  the  machinery  employed,  or  in  the  suffrage  fran- 
chise. These  are  State  matters.  Such  has  been  the  fact 
during  most  of  the  history  of  the  United  Stale-,  although  for 
the  period,  1871  to  1894,  there  existed  a  system  of  federal 
supervision  of  congressional  elections.  According  to  the 
Federal   election  laws,   on  the   petition  of   two   citizens,   two 


54  Texas  v.  Whits 

election  supervisors  might  be  appointed  by  the  circuit  court, 
and  these  were  empowered  to  attend  the  election,  challenge 
prospective  electors  of  whom  they  were  suspicious,  prepare 
registration  lists,  and  count  the  ballots  and  make  returns. 
United  States  marshals  with  deputies  might  assist  them  in 
the  performance  of  their  duties  and  keep  the  peace  at  the 
polls,  and  United  States  troops  could  be  used  for  the  same  pur- 
pose. In  all  of  this  legislation,  there  was  nothing  relating  to 
the  electoral  qualifications  of  voters,  although  in  practice  it  is 
well  known  that  the  system  was  employed  for  partisan  pur- 
poses and  that  it  did  affect  electoral  privileges.  Legally,  how- 
ever, it  was  designed  merely  for  supervisory  purposes,  and  on 
that  basis  the  laws  were  upheld  by  the  Supreme  Court.  The 
Constitution  gives  to  each  house  of  Congress  the  right  and 
power  to  judge  the  qualifications  of  its  respective  members. 
It  is  interesting  to  note,  also,  that,  in  actual  law  making, 
the  enacting  clause  reflects  the  influence  of  the  theory. 
The  words,  with  some  slight  variations,  are :  "Be  it  enacted 
or  resolved  by  the  Senate  and  the  House  of  Representatives 
of  the  United  States  in  Congress  assembled." 

The  election  of  the  President  and  Vice  President  is  one  of 
the  nicest  tests  of  this  theory.  These  officers  are  elected  by  the 
voting  people  of  the  States,  despite  the  fact  that  the  expression 
of  their  will  is  made  indirectly.  The  Electoral  College  has 
become,  as  is  well  known,  a  registering  board ;  but  it  is  of 
importance  still  because  of  the  constitutional  requirement  that 
a  majority  must  be  in  favor  of  one  candidate  before  his 
election  is  secured.  It  is  not  demanded,  therefore,  of  the 
presidential  candidate  that  he  obtain  a  popular  majority; 
and,  as  a  matter  of  fact,  it  has  very  often  happened  that  the 
successful  candidate  did  not  receive  such  a  majority.  The 
suffrage,  again,  is  controlled  by  the  States.  The  election  of 
President  in  Massachusetts  has  no  connection,  legally  and 
officially,  except  in  point  of  time,  with  that  in  Texas,  Con- 
necticut, or  New  York.  The  cumulative  results  in  the  States 
form  the  election  for  this  office.  Although  independent  in  the 
actual  election,  that  election  is  valid  and  effective  in  Texas  or 


The  Opinion  of  the  Court  55 

Massachusetts,  of  course,  because  these  States  are  members  of 
the  Union.  In  case  the  election  is  thrown  into  the  House  of 
Representatives,  the  action  is  effected  by  votes  of  the  States, — 
in  a  united  capacity. 

It  might  well  be  asked,  in  a  consideration  of  the  govern- 
mental organization,  as  a  whole,  whether  or  not  the  remain- 
ing department  of  the  national  government,  the  judicial, 
conforms  to  the  theory  here  laid  down.  Preliminary  to 
an  answer  to  this  question,  it  should  be  stated  that  in 
any  theory  of  the  federal  government  an  explanation  of 
the  judiciary  is  extremely  difficult,  if  not  entirely  impos- 
sible; for  the  truth  is  that  an  appointive  judiciary  with  a 
life  tenure  of  office  is  not  a  republican  institution.  Any 
conformity  that  it  may  have  with  this  or  any  other  theory 
would  be  only  partial  and  questionable.  There  are  how- 
ever, in  the  methods  of  appointment  and  control  certain 
facts  which  afford  some  basis  for  the  claim  that  the  theory 
is  in  some  measure  applicable  to  this  department  as  well  as  to 
the  other  two.  As  is  well  known,  the  federal  judges  are 
nominated  by  the  President,  and  the  appointment  is  confirmed 
or  rejected  by  the  Senate.  They  can  be  impeached  by  the 
House  of  Representatives  and  tried  and  convicted,  or  acquitted 
by  the  Senate.  While  it  might  be  thought  that  these  methods 
of  selection  and  removal  exercise  some  control,  the  first  is  only 
temporary  and  the  latter  is  intended  only  for  the  regulation  of 
conduct,  the  punishment  of  abuse  of  office,  and  not  as  a  check 
on  judicial  policy.  The  impeachment  and  removal  of  Justice 
Pickering,  of  New  Hampshire,  for  inebriety  and  insanity  is  no 
real  exception.  The  attempt  to  remove  Justice  Samuel  Chase 
for  partisanship  failed.  The  latter  is,  therefore,  rarely  invok- 
ed; and  actually  in  large  measure  the  judicial  department  is 
independent.  There  is  one  additional  fact,  however,  which  in 
ultimate  consideration  goes  far  to  prove  that  this  departmenl 
may  come  under  this  theory:  the  partial  control  of  the  judiciary 
by  the  political  power.  Congress  may  and  does  control  the 
appellate  jurisdiction  of  the  federal  courts,  having  the  power 
to  remove  all   eases   from   consideration   excepl    those   arising 


56  Texas  v.  White 

from  the  original  jurisdiction.  According  to  the  Constitution 
this  power  is  provided  in  the  following  words :  "In  all  the  other 
cases  before  mentioned,  the  Supreme  Court  shall  have  appel- 
late jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions, 
and  under  such  regulations  as  the  Congress  shall  make."  The 
power  to  "ordain  and  establish"  carries  with  it  the  power  to 
destroy.  This  power  was  exercised  by  Congress  during  the 
Reconstruction  period  in  the  famous  McCardle  matter.13  Con- 
gress has  the  power  to  make  and  has  essayed  the  power  to  de- 
stroy the  federal  courts,  with  the  exception  of  the  Supreme 
Court ;  and  by  refusing  to  confirm  appointments  and  to  appro- 
priate funds  for  the  salaries  of  new  judges  and  for  mainte- 
nance, it  could  ultimately  destroy  the  entire  department.14 
This  extreme  control  is  largely  speculative,  since  the  courts 
would  rarely  withstand  political  pressure  until  such  measures 
should  become  necessary ;  but  it  is  a  potential  and  an  actual 
power,  and  no  doubt  in  times  of  crises  it  could  and  doubt- 
less would  be  exercised.  The  political  power, — which  does 
conform  to  this  theory, — may  also  control  the  courts  and 
the  judicial  department  in  that  the  personnel  of  courts  may  be 
enlarged  and  new  judges  appointed  whose  views  are  known 
to  be  opposed  to  the  obnoxious  opinions  which  the  political 
power  is  desirous  of  overturning.  Lincoln  urged  this  practice  in 
connection  with  the  Dred  Scott  case,  and  it  was  widely  thought 
that  President  Grant  actually  used  this  means  in  the  Legal 
Tender  cases.  Opinions  and  decisions  may  be  nullified  by 
constitutional  Amendment,  as  those  in  Chisholm  v.  Georgia  by 
the  Eleventh  Amendment  and  those  in  Pollock  v.  Farmers' 
Loan  and  Trust  Co.,  better  known  as  the  Income  Tax  cases, 
by  the  Sixteenth  Amendment.15  In  addition  to  all  of  these 
considerations,  it  should  be  remembered  that  the  federal  courts 

13  Bx  parte  McCardle,  6  Wallace,  324. 

14  The  right  of  Congress  to  create  courts  has  generally  been  ad- 
mitted, but  the  destructive  powers  have  been  seriously  questioned. 
One  instance,  however,  of  successful  destruction  was  that  of  the 
Commerce  Court  in  1911.  A  creative  act  was  also  repealed,  in  1802, 
under  influence  of  Jefferson.  See  Beard,  American  Government  and 
Politics,  294  ct  seq. 

15  2  Dallas,  419;  157  U.  S.,  429,  158  U.  S.,  601. 


The  Opinion  of  the  Court  57 

are  dependent  upon  the  executive  department  of  the  govern- 
ment for  the  enforcement  of  their  decrees.  That  enforce- 
ment has  usually  been  immediate  and  unquestioning;  but, 
during  the  War  of  Secession,  in  one  dramatic  instance,  that 
of  Ex  Parte  Merryman,  President  Lincoln  simply  ignored  the 
court.16  The  court  admitted  its  impotence  and  acquiesced  in 
the  result  with  protest.  Jefferson  was  frequently  in  conflict 
with  the  courts,  and  Jackson,  in  the  incident  concerning  the 
Cherokee  Indians  of  Georgia,  announced  his  unalterable  deter- 
mination not  to  execute  the  decrees  of  the  Supreme  Court. 
Despite  all  these  facts,  such  control  as  has  been  found  in 
this  brief  study  is  more  or  less  indirect,  and  the  most  powerful 
judiciary  in  the  world  is  practically  independent  in  times  of 
peace.  So  far  as  the  federal  judiciary  is  controlled,  it  is  con- 
trolled by  public  opinion  and  by  the  other  departments  of  gov- 
ernment. This  theory  is  applicable  to  it,  therefore,  only  in 
that  it  is  partially  controlled  by  departments  which  do  conform 
to  the  theory. 

To  this  extent  do  the  facts  of  the  legal  organization  of  the 
existing  political  system  substantiate  the  theory  of  the  court. 
Under  the  opinion  in  Texas  v.  White,  governmental  authority 
and  power  are  divided  between  the  general  government  on  the 
one  hand  and  those  of  the  States  on  the  other.17  Thus  far  the 
traditional  division  of  power  was  followed  and  endorsed ;  but 
sovereignty,  in  its  political  aspects,  resides  in  the  States  in 
Union,  and  is  not  divided. 

3.     The  Contract  Theory  and  Secession 

Returning  from  this  search  for  the  location  of  sovereignty 
in  the  American  Union,  which  has  led  the  discussion  somewhat 
far  afield,  attention  must  now  be  directed  to  the  conclusions  of 
the  court  as  to  the  character  and  status  of  Texas  before  and 
after  the  attempt  at  secession.  The  court  argued  that  the 
union  of  Texas  witli  the  United  States  was  something  more 
than  a  compact.     It  was  the  irrevocable  incorporation  of  "a 


"McPherson,  Rebellion,  155  el  seq. 
17  Cf.  I:.x  forte  Siebold,  100  U.  S.,  371. 


58  Texas  v.  White; 

new  member  into  the  political  body.  And  it  was  final."  When 
Texas  accepted  the  terms  of  annexation,  a  union  was  formed 
in  which  there  "was  no  place  for  reconsideration,  or  revo- 
cation, except  through  revolution,  or  the  consent  of  the 
States."  There  was  in  this  last  sentence  a  curious  incon- 
sistency of  reasoning  which  destroyed  the  logical  finality  of 
the  conclusions  which  Chief  Justice  Chase  had  drawn  from 
the  preambles  of  the  Articles  of  Confederation  and  the  Con- 
stitution respecting  the  perpetuity  and  indissolubility  of  the 
Union.  There  was  after  all  a  way  by  which  this  Union  could 
be  broken  up :  through  consent  of  the  States. 

The  idea  that  the  States,  in  1787,  consciously  and  deliber- 
ately made  a  contract  with  one  another,  that  this  contract  was 
irrevocable  and  binding  on  the  parties  entering  into  it,  and 
that,  to  be  abrogated,  it  must  have  the  consent  of  all  the 
contracting  parties,  is  here  adopted.  This  conception  of  the 
Union  found  its  earliest  and  ablest  exponent  in  Madison,  who 
claimed  that  it  was  the  philosophical  basis  upon  which  he 
framed  the  famous  Virginia  Resolutions.  There  the  doctrine 
is  set  forth  that  the  Union  is  a  compact  to  which  the  States 
severally  were  parties.18  The  political  result  of  this  compact 
was  the  creation  of  the  general  government  of  the  United 
States  to  which  certain  specifically  enumerated  powers  were 
delegated.     The  exercise  of  powers  was  precisely  limited  to 


18  The  following  extract  from  the  Virginia  resolutions  is  pertinent: 
"That  this  assembly  doth  explicitly  and  peremptorily  declare  that  it 
views  the  powers  of  the  Federal  Government,  as  resulting  from  the 
compact  to  which  the  States  are  parties,  as  limited  by  the  plain  sense 
and  intention  of  the  instrument  constituting  that  compact,  as  no  further 
valid  than  they  are  authorized  by  the  grants  enumerated  in  that  com- 
pact ;  and  that  in  case  of  a  deliberate,  palpable,  and  dangerous  exercise 
of  other  powers,  not  granted  by  the  said  compact,  the  States,  who  are 
parties  thereto,  have  the  right,  and  are  in  duty  bound,  to  interpose  for 
arresting  the  progress  of  the  evil,  and  for  maintaining,  within  their 
respective  limits,  the  authorities,  rights,  liberties,  appertaining  to  them." 
See  MacDonald's  Select  Documents,  Illustrative  of  the  History  of 
the  United  States,  1776-1861,  p.  156.  The  Kentucky  Resolutions  are 
much  stronger  in  their  assertion  of  the  right  of  the  State  to  inter- 
fere, and  there  is  even  the  word  "nullification" ;  but  Madison  stated  that 
Jefferson  had  the  same  idea  when  he  was  writing  his  resolutions,  and 
that  he  would  have  repudiated  any  other  interpretation  of  them. 


The  Opinion  of  the  Court  59 

those  mentioned  in  the  Constitution.  In  case  of  an  exercise 
of  power  not  granted,  the  resolutions  contemplated  an  inter- 
position of  the  States  to  prevent  a  violation  of  the  constitu- 
tional pact.  This  guardianship  of  the  Constitution  was  a 
solemn  duty  imposed  upon  the  States.  During  the  nullifi- 
cation period,  when  Madison  came  to  interpret  these  resolu- 
tions, he  maintained  that  he  was  speaking  of  the  powers  and 
duties  of  the  States  in  their  plural  and  collective  capacity,  and 
not  of  those  of  a  single  State.  Thus  all  the  parties  to  the  com- 
pact could  challenge  and  refuse  compliance  with  the  sup- 
posedly unconstitutional  acts  of  the  general  government,  but 
this  right  and  power  were  denied  to  a  single  State,  which  could 
only  initiate  an  inquiry  or  an  agitation  of  the  matter  that  might 
lead  to  a  redress  of  the  injustice  protested  against. 

From  the  premise  that  the  Union  is  a  compact  to  which 
the  States  are  parties,  Madison  drew  certain  conclusions  as  to 
the  responsibility  of  the  United  States  and  the  States  in 
the  performance  and  observance  of  their  mutual  constitutional 
obligations.  There  were  occasions  when  it  became  the  duty  of 
the  States  to  interfere  in  order  to  check  the  encroachment  of 
the  general  government  upon  the  limitations  prescribed  by  the 
Constitution.  Thus  the  rights  and  powers  of  the  States  and 
the  liberties  of  their  people  would  be  preserved.  On  the 
other  hand,  the  States  had  engaged  themselves  in  this  compact, 
and  must  govern  themselves  accordingly.  They  could  not 
release  themselves  from  the  compact  at  their  own  pleasure. 

It  is  the  nature  and  essence  of  a  compact  that  it  is  equally  ob- 
ligatory upon  the  parties  to  it,  and  that  no  one  of  them  can  be 
liberated  therefrom  without  the  consent  of  the  others",  or  such 
a  violation  of  it,  or  abuse  of  it  by  the  others,  as  will  amount  to 

a  dissolution  of  the  compact Applying  a  like  view 

of  the  subject  to  the  United  States  it  results  that  the  compacl 
being  among  individuals  aN  embodied  into  States,  no  State  al 
pleasure  can  release  itself  therefrom,  and  set  up  for  itself. 
The  compact  can  only  be  dissolved  by  consent  of  the  other 
parties,  or  by  the  usurpation  of  power  justly  having  thai  effect. 
It  would  hardly  be  contended  that  there  is  anything  in  the 
compact  authorizing  a  part;,  to  dissolve  it  at  pleasure. 

"Hunt  (editor),  Madison's  Works,  IX,  355-356. 


r.i 


60  Texas  v.  White 

Madison  argued  that  the  attempt  by  one  party  to  expound  or 
annul  the  compact  gave  the  others  the  option  of  accepting  the 
annulment  or  insisting,  peaceably  or  forcibly,  upon  the  ful- 
fillment of  obligations  by  the  recalcitrant  member.  Immedi- 
ately, however,  he  said  that  such  an  enforcement  would  be 
disastrous  and  "fatal  to  the  hopes  of  liberty  and  humanity; 
and  presents  a  catastrophe  at  which  all  ought  to  shudder."20 
The  same  idea  was  echoed  in  the  public  utterances  and 
proclamations  of  President  Jackson  during  the  nullification 
period.  It  was  also  popular  among  those  who  opposed  seces- 
sion and  nullification  on  grounds  other  than  those  which  con- 
trolled the  action  of  Jackson.  The  questions  and  issues  in- 
volved in  this  and  all  such  possible  controversies  were  and 
would  be  political  in  nature,  to  a  large  extent,  and,  as  there 
would  inevitably  be  a  division  of  sentiment,  it  was  not  likely 
that  consent  should  ever  be  secured  for  a  dissolution  of 
the  Union ;  so  the  theory  was  employed  later  by  the  most 
ultra-radical  unionists,  who  saw  therein  an  opportunity  of 
getting  their  opponents  into  difficulties  from  which  there 
could  be  no  escape.  It  was  a  sort  of  political  "blind  alley" 
into  which  the  unionists  would  drive  their  enemies,  who 
were  strong  on  theory.  The  argument  of  the  various  parties 
which  adopted  this  theory  was  very  similar  to  that  of 
Madison.  In  fact,  the  administration  leaders  in  the  Jack- 
son period,  like  Senator  Benton,  of  Missouri,  employed  the 
actual  words  of  Madison  as  authoritative  refutation  of 
the  extreme  State  rights  position  of  those  who  favored  null- 
ification. The  attitude  of  the  President  was  made  clear  in  the 
famous  proclamation  to  South  Carolina,  in  which,  after  some 
vacillation    and    hesitation,    the    compact    theory    is    accepted, 


20  Ibid.,  357.  The  theory  of  contract  above  presented  was  frequently 
repeated  by  Madison.  Its  reaffirmation  is  found  in  the  assertions : 
"Were  this  a  mere  league,  each  of  the  parties  would  have  an  equal 
right  to  expound  it;  and  of  course,  there  would  be  as  much  right  in 
one  to  insist  on  the  bargain,  as  in  another  to  renounce  it"  (Ibid.,  IX, 
347)  ;  "The  former  [a  particular  State]  as  only  one  of  the  parties,  owes 
fidelity  to  it,  till  released  by  consent,  or  absolved  by  an  intolerable 
abuse  of  the  power  created"   (Ibid.,  IX,  490). 


The  Opinion  of  the  Court  61 

with  the  results  which  Madison  had  described.  In  this  connec- 
tion Jackson  said : 

Because  the  Union  was  formed  by  compact,  it  is  said  that  the 
parties  to  that  compact  may,  when  they  feel  themselves  ag- 
grieved, depart  from  it:  but  it  is  precisely  because  it  is  a 
compact  that  they  cannot.  A  compact  is  an  agreement  or 
binding  obligation.  It  may  by  its  terms  have  a  sanction  or 
penalty  for  its  breach  or  it  may  not.  If  it  contains  no  sanction, 
it  may  be  broken  with  no  other  consequence  than  moral  guilt : 
if  it  have  a  sanction,  then  the  breach  insures  the  designated 
or  implied  penalty.21 

He  argued  that  every  government  has  a  sanction, — the  right 
of  self-preservation.  The  implication  is,  also,  that  the  govern- 
ment of  the  United  States  has  the  power  to  enforce  the  fulfil- 
ment by  the  States  of  the  obligations  incident  to  the  contract. 
In  his  special  message  to  Congress  in  December  of  1832, 
Jackson  restated  his  position  in  the  following  expressive  terms : 

The  right  of  the  people  of  a  single  State  to  absolve  themselves 
at  will,  and  without  the  consent  of  the  other  States,  from  their 
solemn  obligations,  and  hazard  the  liberties  and  happiness  of 
the  millions  which  compose  the  Union,  cannot  be  acknowl- 
edged. Such  authority  is  believed  to  be  repugnant  both  to  the 
principles  upon  which  the  general  government  is  constituted, 
and  to  the  objects  which  it  is  expressly   formed  to  attain.22 

The  contract  theory  was  one  of  the  strongest  and  most 
popular  arguments  against  the  action  of  the  Southern  States, 
in  1860-1861,  when  they  seceded  from  the  Union.  Lincoln 
recognized  its  force,  and  employed  it  in  his  inaugural  as  an 
argument  in  rebuttal  of  the  State  sovereignty  doctrine  asserted 
by  the  seceding  States.     He  put  it  in.  the  form  of  questions — 

If  the  United  States  be  not  a  government  proper,  but  an  associ- 
ation of  States  in  the  nature  of  contract  merely,  can  it,  as  a 
contract,  be  peaceably  unmade  by  less  than  all  the  parties  win* 
made  it?  One  party  to  a  contract  may  violate  it — break  it,  so 
to  speak;  but  does  it  not  require  all  to  rescind  it  ?2:; 


21  MacDonald,  Select  Documents,  op.  cit.,  279. 

""'Richardson,  Messages  and  Papers  of  the  Presidents,  II.  621. 

a  Xicolay  and  Hay  (editors),  Lincoln's  Works,   II,  3. 


62  Texas  v.  White; 

t 

Such  was  the  theory  which  the  court  adopted.  Since  the 
other  States  did  not  consent  to  its  renunciation  of  the  Union, 
the  court  was  of  the  opinion  that  despite  the  actions  of  Texas, 

the  obligations  of  the  State,  as  a  member  of  the  Union,  and  of 
every  citizen  of  the  State,  as  a  citizen  of  the  Untied  States, 
remained  perfect  and  unimpaired.  It  certainly  follows  that 
the  State  did  not  cease  to  be  a  State,  nor  her  citizens  to  be 
citizens  of  the  Union.  If  this  were  otherwise,  the  State  would 
have  become  foreign,  and  her  citizens  foreigners.  The  war 
must  have  ceased  to  be  a  war  for  the  suppression  of  the  rebel- 
ion,  and  must  have  become  a  war  for  conquest  and  subjuga- 
tion.24 

Our  conclusion,  therefore,  is,  that  Texas  continued  to  be 
a  State  in  the  Union,  notwithstanding  the  transactions  to  which 
we  have  referred. 

The  attitude  of  Chase,  as  a  statesman,  toward  secession  had 
been  clear,  of  course,  throughout  the  entire  struggle,  and  his 
views  as  a  justice  were  announced,  prior  to  the  reading  of 
the  opinion  in  Texas  v.  White,  in  June  of  1867,  at  Raleigh, 
North  Carolina.  In  the  case  of  Shortridge  &  Co.  v.  Macon, 
he  said, — 

There  is  no  doubt  that  the  State  of  North  Carolina,  by  the  acts 
of  the  Convention  of  May,  1861,  by  the  previous  acts  of  the 
governor  of  the  State,  by  subsequent  acts  of  all  the  depart- 
ments of  the  State  government,  and  by  the  action  of  the  people 
at  the  elections  held  after  May,  1861,  set  aside  her  State 
government  and  constitution  connected  under  the  national  con- 
stitution with  the  government  of  the  United  States,  and  estab- 
lished a  new  constitution  and  government  connected  with 
another  so-called  central  government,  set  up  in  hostility  to  the 
United  States,  and  entered  upon  a  course  of  active  warfare 
against  the  national  government. 

Nor  is  there  any  doubt  that  by  these  acts  the  practical  rela- 
tions of  North  Carolina  to  the  Union  were  suspended,  and 
very  serious  liabilities  incurred  by  those  who  were  engaged  in 
them. 

But  these  acts  did  not  effect,  even  for  a  moment,  the  sep- 
aration of  North  Carolina  from  the  Union,  any  more  than  the 
acts   of   an    individual   who    commits   grave   offenses    against 


24  This  would  have  been  contrary  to  the  resolutions   of   Congress, 
declaring  the  nature  of  the  war.     Dunning,  Essays,  13. 


The  Opinion  op  the  Court  63 

the  State  by  resisting  its  officers  and  by  defying  its  authority, 
separate  him  from  the  State.  Such  acts  may  subject  the 
offender  even  to  outlawry,  but  can  discharge  him  from  no  duty 
and  can  relieve  him  from  no  responsibility.25 

Confronted  with  the  alternative  of  declaring  a  particular 
political  community  a  State  or  not  a  State, — an  alternative 
created  by  conditions  arising  from  secession,  the  war.  and  the 
attempts  to  restore  or  reconstruct  the  commonwealths  which 
were  formerly  the  Southern  States  in  the  Union, — the  court 
encountered  the  difficulties  of  those  who  would  reconcile 
the  facts  and  results  of  revolution  with  historical  traditions, 
legal  precedents,  and  political  theories  which  that  revolution 
in  large  measure,  sought  to  destroy.  In  the  state  which  has 
no  written  constitution  the  problem  is  not  a  particularly  serious 
or  difficult  one,  for  the  facts  of  revolution  can  then  be  ad- 
mitted without  legal  complications ;  but  when  the  public  law 
of  a  country  is  embodied  in  the  fixed  and  rigid  forms  of  a 
written  constitution,  the  effort  becomes  involved  in  compli- 
cations and,  oftentimes,  in  contradictions.  In  the  United 
States,  there  has  always  been  a  very  large  element  which 
has  sought  to  preserve  the  historic  continuity  of  our  con- 
stitutional law.  Even  during  the  war  and  reconstruction  per- 
iods, when  radicalism  was  rampant,  a  strong  effort  was  made, 
especially  in  the  Senate,  to  prevent  a  hiatus  in  legal  develop- 
ment. Loyalty  to  and  respect  for  the  Constitution  were  often 
invoked  in  order  to  prevent  too  radical  a  departure  from 
earlier  forms.  That  the  Constitution,  the  method  and  ex- 
tent of  administrative  control,  and  the  division  of  powers 
between  the  departments  and  between  the  State  and  na- 
tional .governments,  were  not  more  radically  changed  \v;is 
in  the  main,  I  think,  due  to  the  old-time  prestige  of  the 
Constitution  and  to  the  desire  to  avoid  an  abrupt  revolution 
in  law.  And  when  the  time  came  for  the  establishment  of  the 
results  of  the  war  in  the  law  of  the  land,  care  was  taken  that 
there  should  be  an  uninterrupted  progression  in  the  legal 
history  of  the  nation.     In  laboring  for  the  accomplishment  of 


'Johnson,  Chase  Decisions,  136. 


64  Texas  v.  White 

this  purpose,  the  course  of  reasoning  followed  by  the  conserv- 
atives was  frequently  tortuous  and  inconsistent.  Notwith- 
standing this  fact,  the  duty  and  task  of  securing  this  end 
were  assumed  by  the  Supreme  Court  of  the  United  States, 
and  the  opinion  in  the  case  of  Texas  v.  White  was  written 
with  this  purpose  in  view. 

For  all  such  efforts,  the  radicals  had  an  ill-concealed  con- 
tempt. "The  law  of  the  thing"  was  a  secondary  matter,  and 
was  to  be  disregarded  in  case  it  interfered  in  securing  the  po- 
litical ends  for  which  they  were  contending.  Such  an  attitude 
had  the  advantage  that  may  be  derived  from  the  great  philo- 
sophical truth  that  it  is  oftentimes  impossible  to  harmonize  the 
violent  changes  effected  by  one  generation  with  the  laws  and 
political  theories  entertained  by  another.  In  a  process  of  this 
sort,  they  said,  a  definite  political  fact,  for  the  achievement  of 
which  blood  has  been  shed  and  treasure  expended,  often  be- 
comes obscured  in  the  intricate  complexities  of  legal  fiction. 

4.     The  Consequences  of  Rebellion 

The  fact  that  the  obligations  and  duties  of  Texas  and  her 
citizens  remained  unaltered  during  the  period  of  civil  strife, 
and  that  the  State  as  such  was  not  destroyed,  was  not  to  be 
taken  as  an  indication  that  relations  of  the  State  with  the 
general  government  remained  unchanged.  There  must  be 
certain  relations  of  the  State  and  the  Union  complete  and 
unbroken,  however,  before  a  suit  can  be  brought  before  the 
Supreme  Court  by  the  State.  In  other  words,  Texas,  in  order  to 
sue  as  a  State,  must  possess  a  state  government  "competent  to 
represent  the  State  in  its  relations  with  the  national  govern- 
ment, so  far  at  least  as  the  institution  and  prosecution  of  a 
suit  is  concerned."20  Marshall,  in  the  case  of  Hepburn  and 
Dundass  v.  Ellxey,  had  held  that  the  community,  claiming  to 
be  a  State,  must  actually  have  representatives  in  Congress, 
that  the  relations  of  the  State  to  the  Federal  government 
must  be  complete,  in  order  to  invoke  the  original  jurisdiction 
of  the  Supreme  Court.27     These  requirements  Chief  Justice 

26  7  Wallace,  726-727. 

27  Ibid.  727, 


The  Opinion  of  the  Court  65 

Chase  calmly  set  aside.  He  argued  that,  while  obligations 
often  remained  unimpaired,  the  relations  may  be  undergoing 
the  most  violent  disruption.  This  was  revolutionary  doctrine, 
but  so  were  the  circumstances  which  demanded  attention. 

The  obligations  of  allegiance  to  the  State,  and  of  obedience  to 
her  laws,  subject  to  the  Constitution  of  the  United  States,  are 
binding  upon  all  citizens,  whether  faithful  or  unfaithful  to 
them ;  but  the  relations  which  subsist  while  these  obligations 
are  performed  are  essentially  different  from  those  which  arise 
when  they  are  disregarded  and  set  at  naught. 

He  continued  that,  when  the  people  and  government  of  a 
State  departed  from  their  allegiance  to  the  Union  and  from 
the  performance  of  their  duties,  as  in  the  time  of  civil  war, 
the  rights  and  privileges  of  the  State  were  to  be  regarded 
suspended.  Under  such  circumstances,  it  would  be  absurd  to 
claim  for  such  States  the  right  to  representation  in  Congress. 
Instead  of  having  that  right  "the  government  and  the  citizens  of 
the  State,  refusing  to  recognize  their  constitutional  obligations, 
assumed  the  character  of  enemies,  and  incurred  the  conse- 
quences of  rebellion.'*  Just  what,  under  the  Constitution, 
were  the  nature  and  prerogatives  of  the  State,  in  such  a 
condition,  the  court  did  not  feel  it  necessary  to  specify.  The 
opinion  presented  the  curious  phenomenon  of  an  abstract  en- 
tity, a  State,  remaining  in  the  Union,  while  devoid  of  loyal 
government  and  inhabitants.  To  this  extent,  the  court  adopted 
the  forfeited-rights  theory  of  the  status  of  the  States. 

It  has  been  seen  that  the  court  required  the  State  to  meet 
certain  requirements  before  it  could  take  advantage  of  the 
original  jurisdiction.  These  were  spoken  of  by  the  court  in 
vague  and  general  terms.  No  specific  rule  was  laid  down  by 
which  it  would  be  possible  to  determine  with  certainty  whether 
or  not  a  particular  political  body,  purporting  to  be  a  State, 
possessed  the  prerequisites  which  made  such  an  invocation 
legal  and  proper.  In  the  first  place,  it  was  asserted  that  there 
must  be  a  government  competent  to  represent  the  State  in  the 
national  government.  It  was  not  required  that  this  government 
actually  have  representatives  in  good  standing  at  Washington, 
— only  that  it  be  capable  of  having  them  there.  A  state  govern- 


66  Texas  v.  White 

ment  in  rebellion  against  the  United  States  could  not  sue  in  the 
court,  but  this  inhibition  did  not  extend  to  other  governments 
of  proper  allegiance  which  might  under  different  circumstances 
be  organized  as  substitutes.28  Instead  of  announcing  a  definite 
criterion  by  which  the  claims  of  a  State  might  be  judged,  the 
court  held  that  each  case  must  be  decided  upon  its  own  merits. 

5.    Restoration  and  Reconstruction 

The  duties  of  the  United  States  when  confronted  by  the 
extraordinary  conditions  of  1861-1865  were  two-fold:  the  first 
was  the  suppression  of  the  rebellion,  and  the  second  was  the 
restoration  of  the  erring  States  to  their  former  relations.  The 
authority  for  the  first,  said  the  court,  is  provided  by  the  Con- 
stitution in  the  power  to  suppress  insurrection  and  carry  on 
war ;  and,  for  the  second,  in  the  obligation  of  guaranteeing 
a  republican  form  of  government  to  each  State.  The  latter 
power  is  the  natural  and  necessary  complement  of  the  former. 
The  President  in  his  proclamation  appointing  Governor  Ham- 
ilton had  claimed  the  right  to  take  steps  toward  the  restoration 
of  Texas  on  the  ground  that  the  Constitution  guaranteed  to 
each  State  a  republican  form  of  government  and,  secondly,  on 
the  ground  that  his  military  and  civil  position  made  it  in- 
cumbent on  him  to  fulfill  the  obligations  of  the  United  States. 
The  way  in  which  he  had  endeavored  to  perform  these  duties 
has  been  recounted  already,  and  we  shall  now  see  how  far 
the  court  would  uphold  the  executive.  The  application 
of  these  very  clear  powers  and  duties  would  have  been 
simple  enough  had  the  task  not  been  complicated  by  an 
additional  element — the  great  social  change  in  the  status 
of  the  negro  which  resulted  from  the  success  of  the  Union 
cause.  In  accordance  with  the  Emancipation  Proclamation, 
as  it  was  interpreted  in  military  circles,  the  negro  slaves 
became  freemen  whenever  the  federal  forces  obtained  control 
of  certain  Southern  States  and  districts.29     This  application 


23  This  opinion,  for  example,  would  not  have  prevented  the  Pier- 
point  government  of  Virginia  from  suing  in  the  court. 

29  Dunning,  Essays,  133-135 ;  Schofield,  Forty-six  Years  in  the 
Army,  370. 


The  Opinion  of  the  Court  67 

of  the  war  power  was  later  confirmed  by  the  ratification  of 
the  Thirteenth  amendment  to  the  Constitution.  According  to 
the  Chief  Justice,  all  these  acts  from  the  beginning  made  it 
clear  that  there  "must  be  complete  enfranchisement"  of  the 
freedmen. 

The  new  freedmen  necessarily  became  a  part  of  the  people,  and 
the  people,  still  constituted  the  State ;  for  States,  like  individ- 
uals, retain  their  identity,  though  changed  to  some  extent  in 
their  constituent  elements.  And  it  was  the  State,  thus  con- 
stituted, which  was  now  entitled  to  the  benefit  of  the  consti- 
tutional guaranty.30 

Although  this  was  a  non  sequitur  of  the  most  flagrant  type, 
its  annunciation  denoted  how  far  revolutionary  ideas  had 
invaded  the  court  room.  It  may  be  safely  said  that,  since  the 
formation  of  the  government,  the  States  had  retained  the  right 
to  determine  the  suffrage  qualifications.  Here  it  is  implied 
that  any  government  which  debarred  the  negro  from  equal 
participation  in  the  privileges  of  its  citizens  was  not  truly 
republican  in  form.  This  idea  was  not  expressly  stated,  but 
the  implication  is  so  strong  that  it  is  impossible  to  doubt  what 
was  in  the  mind  of  the  court.  It  showed  how  far  the  judiciary 
had  traveled  from  the  interpretation  of  Daniel  Webster  and  the 
ante  bell um  lawyers  of  his  school.  Madison,  in  the  Feder- 
alist, had  declared  that  this  clause  had  imposed  upon  the 
United  States  the  duty  of  guaranteeing  the  continuity  of  the 
systems  of  the  state  governments  then  in  existence,  or,  in 
other  words,  that  it  was  an  insurance  against  the  destruction 
of  that  form  of  government  which  was  in  vogue  at  the  time  of 
the  adoption  of  the  Constitution  and  which  was  most  certainly 
considered   republican/11      The   primary   aim    was   to   prevent 


30  7  Wallace.  728-729. 

"See  No.  43  of  the  Federalist  (Lodge  Edition),  270  et  scq.  There, 
in  discussing  the  guaranty  clause,  he  says,  "In  a  confederacy  founded 
on  republican  principles,  and  composed  of  republican  members,  the 
superintending  government  ought  clearly  to  possess  authority  to 
defend  the  system  against  aristocratic  or  monarchical  innovations." 
The  members,  therefore,  of  the  Union  should  have  their  republican 
governments  "substantially  maintained."  This  protection  and  authority 
extend  no   further,   said   Madison,  than  guaranteeing  the  continuance 


68  Texas  v.  White 

the  introduction  of  monarchical  elements  which  might  subvert 
the  existing  order. 

Webster,  in  his  great  argument  in  the  case  of  Luther  v. 
Borden,  had  said : 

The  law  and  the  Constitution  go  on  the  idea  that  the  States 
are  all  republican,  that  they  are  all  representative  in  their 
forms,  and  that  these  popular  governments  in  each  State,  the 
annually  created  creatures  of  the  people,  will  give  all  proper 
facilities  and  necessary  aids  to  bring  about  changes  which  the 
people  may  judge  necessary  in  their  constitutions.32 

A  corollary  of  this  doctrine  is  that  when  the  governments  of 
the  States  are  changed  the  alteration  must  be  accomplished 
in  accordance  with  the  amending  clause  of  the  constitution  of 
the  State.  The  duty  of  the  United  States  was  to  protect  the 
State  against  changes  of  any  other  character  or  by  any  other 
method. 

In  the  leading  case  of  Luther  v.  Borden,  above  mentioned, 
Chief  Justice  Taney  held  that  the  guaranty  clause  was  an 
obligation  for  Congress  to  fulfill.  "Under  this  article  of  the 
Constitution  it  rests  with  the  Congress  to  decide  what  gov- 
ernment is  the  established  one  in  the  State.  For  as  the 
United  States  guarantee  to  each  State  a  republican  form  of 
government,  Congress  must  necessarily  decide  what  govern- 
ment is  established  in  the  State  before  it  can  determine  whether 
it  is  republican  in  form  or  not."33  When  Congress  decides, 
the  decision  is  binding  upon  every  other  department  of  the 
government.      The    executive    authority,    also,    has    a    certain 

of  the  pre-existing  governments.  The  States  might  change  their  gov- 
ernments, but  in  the  process  of  substitution  and  alteration,  they  must 
take  care  that  the  product  be  republican. 

This  clause  should  be  taken  in  connection  with  those  which  protect 
the  State  against  foreign  invasion  and  against  domestic  violence.  All 
of  these  provisions  are  aimed  to  maintain  the  stability  and  integrity 
of  the  State  government.  Thus  Madison  treats  the  subject  in  that 
number  of  the  Federalist.  For  the  views  of  the  constitutional  con- 
vention, see  Hunt  (editor),  Madison's  Works,  III,  93,  144,  469-471. 

33  Mclntire,  (editor),  Webster's  Works,  VI,  217  et  scq.;  Dunning, 
Essays,  132. 

33  7  Howard,  42. 


The  Opinion  of  the  Court  69 

power  in  the  matter.  In  case  of  domestic  violence  within  the 
State,  Congress  must  provide  means  for  meeting  the  exigency. 
The  method  of  procedure  has  been  provided  in  the  act  of 
February  28,  1795,  by  which  the  President,  on  application 
of  the  State  authorities,  can  suppress  an  insurrection.  The 
President,  therefore,  is  empowered  to  decide  whether  the 
conditions  call  for  interference ;  and,  since  he  must  act  on  the 
demand  of  the  state  authorities,  he  must  decide  which  is  the 
legal  government  of  the  State.  Thus  both  branches  of  the 
political  power  have  a  part  in  the  recognition  of  State  govern- 
ments and  in  guaranteeing  to  them  a  republican  form,  though 
it  is  possible  that  the  part  of  the  President  is  more  military 
than  political.  Such  a  recognition  by  the  political  power  made 
the  government  legal  in  the  eyes  of  the  judicial  department. 

Such  was  the  accepted  interpretation  of  the  guaranty  clause 
before  the  war  period.34  The  first  indication  of  the  use  to 
which  the  clause  was  afterwards  put  was  furnished  by  the 
famous  Sumner  resolutions  of  February  11,  1862,  in  which  he 
claimed  for  the  national  government  the  power  to  set  up 
within  the  territory  of  the  recreant  States  new  governments, 
in  the  organization  of  which  should  be  included  those  ideas 


34  There  had,  indeed,  been  intimations  of  a  different  conception  of 
its  meaning,  but  they  had  not  received  any  very  general  approval.  Of 
this  nature  were  the  comments  of  Senator  John  Forsyth,  of  Georgia, 
in  1833,  when  the  bill  for  the  enforcement  of  the  collection  of  revenue 
duties,  a  measure  to  deal  with  the  South  Carolina  difficulty,  was  being 
debated.  At  the  same  time,  Calhoun's  resolutions  defining  the  nature 
of  the  Union  were  being  considered.  Forsyth,  one  of  the  most  dis- 
tinguished of  the  Jackson  administration  leaders  in  the  Senate,  de- 
clared that  the  United  States  had  the  power  to  enter  a  State  and  change 
its  government  so  as  to  make  it  conform  to  the  accepted  idea  of  a 
republican  form  of  government.  This  daring  utterance  aroused  the 
immediate  and  vehement  opposition  of  Calhoun,  who  said  that  he  was 
amazed  to  hear  such  a  doctrine  announced  by  a  Southerner  in  whose 
State  there  existed  a  peculiar  institution  which  might  be  declared  in- 
compatible with  a  republican  form  of  government  by  its  enemies. 
(Cralle  (editor),  Calhoun's  Works,  II,  308;  Annals  of  Congress,  1833, 
Vol.  9,  Part  1,  p.  774.)  Although  it  seems  from  the  meager  reports 
of  this  debate  that  the  declaration  of  Forsyth  did  not  attract  great 
attention,  it  nevertheless  stands  as  a  precedent  for  the  radical  interpre- 
tations given  to  the  clause  during  the  war  period. 


70  Texas  v.  White 

of  political  science  of  which  he  was  so  conspicuous  a  protag- 
onist. In  that  case  Congress,  in  accordance  with  the  injunction 
of  the  Constitution,  should  assume  jurisdiction  of  the  territory 
which  was  formerly  occupied  by  the  States  now  in  rebellion 
against  the  Union,  and  should  proceed  to  establish  republican 
governments. 

At  the  time  of  its  announcement,  this  idea,  in  connection 
with  others  equally  revolutionary,  so  shocked  the  conservatives 
that  the  resolutions  were  never  debated.  In  January  of  1864, 
however,  a  bill  was  introduced  by  Representative  Henry  Win- 
ter Davis  to  guarantee  to  certain  States  a  republican  form 
of  government,  when  the  ideas  of  Sumner  were  made  use  of. 
This  bill  was  immediately  occasioned  by  a  message  of  Pres- 
ident Lincoln's  which  had  been  submitted  during  the  previous 
month.  A  part  of  the  message  was  devoted  to  a  statement 
of  reasons  for  the  reorganization  and  restoration  of  those 
States  from  which  the  Confederate  forces  had  been  expelled 
to  their  normal  relations  with  the  national  government.  The 
procedure  for  this  had  been  announced  in  his  proclamation 
of  amnesty  and  reconstruction  of  the  same  day,  December  8, 
1863,  on  which  the  message  was  sent  to  Congress.  One 
basis  for  his  action  was  the  guaranty  clause,  and  it  was  ap- 
pealed to  as  justification  for  protecting  the  loyalist  element 
of  Louisiana  and  Arkansas.  "This  section  of  the  Constitution 
contemplates  a  case  wherein  the  element  within  a  State  favor- 
able to  republican  government  in  the  Union  may  be  too  feeble 
for  an  opposite  and  hostile  element  external  to,  or  even  within, 
the  State;  and  such  are  precisely  the  cases  with  which  we  are 
now  dealing."35  This  statement  referred  to  the  constitutional 
provision  for  the  protection  of  the  State  against  invasion  and 
domestic  violence.  The  result  of  the  message  was  the  bill 
already  mentioned.  In  reference  to  the  guaranty  clause,  Davis, 
speaking  for  the  bill,  remarked  :36 


33Nicolay  and  Hay  (editors),  Lincoln's  Works,  II,  454-455;  Mc- 
Carthy, Lincoln's  Plan  of  Reconstruction,  225  et  seq. 

30  Congressional  Globe,  appendix,  part  IV,  1  Sess.,  38th  Cong.,  p.  82, 
et  seq. 


The  Opinion  of  the  Court  71 

That  clause  vests  in  the  Congress  of  the  United  States  a 
plenary,  supreme,  and  unlimited  political  jurisdiction,  para- 
mount over  courts,  subject  only  to  the  people  of  the  United 
States,  embracing  within  its  scope  every  legislative  measure 
necessary  and  proper  to  make  it  effectual ;  and  what  is  neces- 
sary and  proper,  the  Constitution  refers,  in  the  first  place,  to 
our  judgment,  subject  to  no  revision  but  that  of  the  people. 
It  recognizes  no  other  tribunal.  It  recognizes  the  judgment  of 
no  court.  It  refers  to  no  authority  except  the  will  of  the 
majority  of  Congress,  and  of  the  people  on  the  judgment,  if 
any  appeal  from  it. 

He  contended  that  there  could  be  no  republican  govern- 
ment in  the  State  which  refuses  to  obey  the  Constitution, 
or  in  that  State  whose  government  the  President  and  the 
Congress  of  the  United  States  do  not,  on  their  part,  recognize 
as  legal.  Since  the  Southern  States  were  not  so  recognized 
by  Congress,  and  had  no  republican  governments,  it  was  the 
imperative  duty  of  Congress  to  supply  them  with  such.  Con- 
gress could  organize  a  government,  in  accordance  with  its 
ideas  of  what  that  government  should  be,  and  then  recognize 
it  as  legal  and  established.  And  there  was  no  power  under  the 
Constitution  which  could  gainsay  the  act.  This  elaborate  argu- 
ment was  made  in  order  to  provide  a  means  for  the  Con- 
gressional abolition  of  slavery,  and,  later,  for  an  assurance 
of  the  civil  rights  of  the  freedmen.  While  it  was  admitted  that 
this  power  could  be  called  into  activity  only  by  a  dereliction 
of  the  States,  it  was  claimed  that,  when  once  invoked,  there 
was  no  legal  limitation  upon  it.37 

The  Texas  v.  White  case  was  the  first  instance  in  which  the 
Supreme  Court  was  called  upon  to  construe  the  guaranty  clause 
since  the  introduction  of  the  new  and  unhistorical  interpreta- 


"  This  was  the  famous  Wade-Davis  bill,  which,  after  a  long  discus- 
sion, passed  the  House  by  a  vote  of  12>  to  59.  In  the  Senate,  it  was 
championed  by  Wade,  of  Ohio.  There  it  was  adopted  first  by  a  vote 
of  26  to  3,  and  later  by  18  to  14.  The  measure  was  enacted  on  the 
last  day  of  the  session,  and  was  carried  to  Lincoln  only  a  short  while 
he  fun-  adjournment.  It  received  the  pocket  veto  of  the  President.  His 
proclamation,  defending  his  action,  and  reaffirming  bis  determination  to 
adhere  to  his  own  plan,  caused  the  issuance  of  the  Wade-Davis  mani- 
festo. 


72  Texas  v.  White; 

tion  of  that  clause.  The  opinion  in  this  regard, — obiter  dictum 
though  it  was, — reflected  the  revolutionary  spirit  of  the  time, 
and  went  far  toward  endorsing  the  radical  view.  By  implica- 
tion, the  opinion  would  make  it  obligatory  upon  the  United 
States  to  institute  the  change  when  the  State  government  does 
not  conform  with  the  ideal  entertained  by  the  federal  govern- 
ment. This  necessitated  a  violent  shifting  of  the  center  of 
political  gravity  from  the  States  to  the  federal  government, 
and  a  consequent  centralization  of  power  in  the  latter.  In 
requiring  admission  of  the  freedmen  to  the  electorate  as  a 
sine  qua  11011  to  the  possession  of  a  republican  form  of  govern- 
ment, the  reasoning  of  the  court  reminds  one  of  that  of  Sum- 
ner, who  solemnly  assured  the  Senate  that  prior  to  the  adop- 
tion of  the  Constitution  in  1789,  there  had  been,  with  the 
possible  exception  of  Massachusetts,  no  republican  govern- 
ments in  our  States,  that  slavery  and  such  a  form  were  incom- 
patible.38 He  argued,  moreover,  that  to  debar  the  negro  from 
the  suffrage  would  be  tantamount  to  a  loss  of  republican  form 
to  any  government  so  excluding  him. 

In  applying  these  general  views,  the  court  to  some  extent 
passed  opinion  on  the  legal  validity  of  both  the  Presidential 
and  the  Congressional  plans  of  restoration  and  reorganization. 
The  President's  action  in  establishing  provisional  governments 
was  upheld  as  being  a  power  properly  derived  from  his  authori- 
ty as  commander-in-chief  of  the  army  and  navy.  He  had 
found  the  State  of  Texas  deprived  of  civil  government  and 
had  supplied  it  until  the  people  could  reorganize  one  for  them- 
selves. 

So  long  as  the  war  continued,  it  cannot  be  denied  that  he  might 
institute  temporary  government  within  insurgent  districts,  oc- 
cupied by  the  National  forces,  or  take  measures,  in  any  State, 
for  the  restoration  of  State  governments  faithful  to  the  Union, 
employing,  however,  in  such  efforts,  only  such  means  and 
agents  as  were  authorized  by  constitutional  laws.39 

Whether  he  had  been  in  the  right  in  superintending  the  entire 


38  Dunning,  Essays,  134;  McCarthy,  Lincoln's  Plan  of  Reconstruc- 
tion, 209. 

39  7  Wallace,  730. 


The  Opinion  of  the  Court  73 

process  of  restoration  without  consultation  with  the  legislative 
department,  the  court  did  not  consider  it  necessary  to  state. 
This  was  as  far  as  the  Supreme  Court  would  go  in  support 
of  the  President  in  his  controversy  with  Congress.  Thus  far, 
however,  the  support  was  definite  and  thorough-going,  for  it 
was  declared  that  the  organization  of  the  provisional  govern- 
ments was  within  his  power.  But  it  was  stated  that  he  was  in 
error  in  arrogating  to  himself  the  authority  and  function  of 
guaranteeing  a  republican  form  of  government  to  the  State. 
In  reference  to  this  power,  the  court  said, 

The  power  to  carry  into  effect  the  clause  of  guaranty  is  pri- 
marily a  legislative  power,  and  resides  in  Congress.  Under  the 
fourth  article  of  the  Constitution,  it  rests  with  Congress  to 
decide  what  government  is  the  established  one  in  a  State.  For, 
as  the  United  States  guarantee  to  each  State  a  republican  form 
of  government,  Congress  must  necessarily  decide  what  govern- 
ment is  established  in  the  State,  before  it  can  determine 
whether  it  is  republican  or  not.40 

The  action  of  the  President,  it  was  alleged,  must  be  considered 
as  purely  temporary  and  provisional.  It  was  within  the  consti- 
tutional competency  of  Congress  to  declare  it  to  be  so  or  to  be 
final  and  complete.  The  court  in  Luther  v.  Borden  had  said 
in  this  connection :  "Undoubtedly,  if  the  President  in  exercis- 
ing this  power,  shall  fall  into  error,  or  invade  the  rights  of  the 
people  of  the  State,  it  would  be  in  the  power  of  Congress  to 
apply  the  proper  remedy."  If  this  view  is  correct,  the  President 
was  wrong  in  part  and  Congress  right.  The  Reconstruction 
Acts  have  often  been  criticized  as  being  unconstitutional,  but 
from  this  case  and  others  it  would  appear  that  the  enforcement 
of  the  guaranty  clause  is  a  legislative  function.  It  would  seem, 
therefore,  that  Congress  had  the  constitutional  power  to  enact 
reconstruction  legislation.  Whether  the  particular  laws  adopt- 
ed were  valid  or  not  is  a  wholly  different  question  which  would 
have  to  be  considered  on  its  legal  and  political  merits. 

As  to  the  acts  of  Congress,  when  setting  in  operation  its 


"The  words  of  Taney  in  the  case  of  Luther  v.  r<,<nh-n,  7  Howard, 
42. 


74  Texas  v.  White 

own  plan  for  reconstruction,  there  was  nothing  in  the  case 
which  demanded  that  the  court  should  decide  whether  they 
were  constitutional  or  otherwise.  It  was  only  necessary,  for  the 
purposes  of  the  case,  to  ascertain  whether  or  not  these  acts 
had  recognized  the  existing  governments  as  established.  This, 
in  the  opinion  of  the  court,  the  Reconstruction  Acts  had  done. 
These  acts  had  pronounced  the  governments  illegal,  and  had 
made  them  subject  to  the  military  authority  and,  finally,  to 
the  paramount  authority  of  the  United  States.  As  a  matter 
of  fact,  the  district  commanders  had,  in  numerous  cases,  super- 
seded the  State  authorities,  and  had,  in  the  case  of  Texas,  re- 
moved the  governor.  This  showed  a  very  doubtful  respect  for 
the  Johnson  governments,  but  a  respect,  in  the  eyes  of  the 
court,  sufficient  to  warrant  the  assumption  that  they  had  been 
recognized  by  the  political  power.  In  denouncing  the  govern- 
ment as  illegal,  the  law  had  mentioned  the  name  of  that  govern- 
ment. It  had,  therefore,  recognized  it  as  existing  and  estab- 
lished. It  may  be  said,  furthermore,  in  development  of  this 
ingenious  idea,  that,  although  the  destruction  of  these  govern- 
ments was  threatened  and  provided  for,  Congress  had  not  actu- 
ally destroyed  them.  When  the  State  government  of  Texas, 
also,  had  been  superseded  and  the  governor  removed,  the  suc- 
cessor had  been  recognized  by  the  agent  of  Congress,  General 
Sheridan.  The  political  power  of  the  government,  through 
him,  had  taken  action,  and  the  court  was  estopped  from  fur- 
ther inquiry.  That  government,  so  organized,  represented  the 
State  of  Texas,  and  had  given  its  sanction  to  the  efforts  of  the 
attorneys  who  were  prosecuting  the  case ;  and  "the  necessary 
conclusion  is  that  the  suit  was  instituted  and  prosecuted  by 
competent  authority."  Texas,  having  been  declared  a  State 
despite  the  vicissitudes  undergone,  had  a  government  capable 
of  representing  its  interests.  The  plea  of  a  lack  of  jurisdiction 
was,  therefore,  dismissed. 

In  this  elaborate  opinion,  the  Supreme  Court  had  adopted 
the  forfeited-rights  theory  in  practically  all  the  decisive  argu- 
ments concerning  the  status  of  the  Southern  States.  In  ans- 
wering the  question,  whether  Texas,  in  consequence  of  her  re- 


The  Opinion  of  the  Court  75 

bellious  course,  ceased  to  be  a  State  in  the  American  Union, 
the  desire  to  preserve  the  historic  continuity  of  legal  develop- 
ment involved  the  court  in  logic  of  questionable  soundness 
when  it  came  to  reconcile  the  action  of  Congress  with  the 
theory  it  chose  to  adopt.  "Historic  continuity"  was  merely  a 
high-sounding  name,  however,  for  the  theoretical  continuity 
of  the  Union  and  the  existence  of  the  States  had  nothing  to 
do  with  the  practical  disruption  of  relations  between  that 
Union  and  the  States.  The  court  was  wrestling  with  the  prob- 
lem, in  the  first  place,  of  acquiescing  judicially  in  the  results 
of  the  Congressional  Reconstruction  as  accomplished  facts, 
which  it  would  be  politically  unwise  to  disturb ;  and,  in  the 
second  place,  of  rescuing  the  States  from  the  position  of  hope- 
less inferiority,  which  the  Congressional  policy  seemed  to  por- 
tend for  them.  Among  those  who  desire  a  continuation  of  the 
federal  system,  this  opinion  should,  therefore,  be  held  in  re- 
gard. Inconsistent,  however,  with  this  end  was  the  interpre- 
tation placed  upon  the  phrase  "republican  form  of  govern- 
ment." In  this  regard  the  words  of  Chief  Justice  Chase  read 
more  like  the  political  pamphlet  of  the  agitator  than  the  calm, 
dispassionate  opinions  popularly  supposed  to  be  the  result  of 
judicial  reasoning.  Like  the  political  pamphlet,  its  significance 
was  lost  sight  of  as  soon  as  the  stress  of  the  issue  which  occa- 
sioned its  production  was  relieved.41 


41  Inclusion  of  the  negro  in  the  suffrage  was  particularly  agreeable 
to  Chase  as  a  politician.  He  had  been  as  radical  as  any  in  demanding 
the  enfranchisement  of  the  freedmen,  and,  therefore,  had  been  greatly 
disappointed  when  the  Johnson  governments  had  declined  to  extend 
the  ballot  to  them.  A  letter  to  John  Russell  Young  is  interesting  in 
connection  with  this  general  subject.  "I  start  with  the  premises  that 
Congress  has  full  power  to  govern  the  rebel  States  until  they  accept 
terms  of  restoration  which  will  insure  future  loyalty,  the  fulfilment  of 
national  obligations,  the  repudiation  of  all  rebellion  and  the  obligations 
of  rebellion;  and  the  security  of  all  rights  for  all  men;  and  that  the 
acts  of  Congress  must  be  construed  with  reference  to  these  ends, 
liberally ;     .     .     .     . 

"I  don't  want  to  see  Congress  set  aside  the  provisional  State  govern- 
ments. It  would  be  a  very  mischievous  measure  in  its  effects  on  pri- 
vate rights,  and  lead  to  much  litigation,  and  very  seriously  retard,  I 
fear,  the  restoration  of  order  and  prosperity  to  the  Smith.  Congress 
may  well  provide  that  the  military  commander  may  remove  State  offi- 


76  Texas  v.  White; 

The  Matter  of  the  Injunction 

From  the  questions  concerning  authority  and  jurisdiction, 
the  court  turned  to  a  consideration  of  the  merits  as  presented 
by  the  pleadings  and  evidence.  At  the  time  of  the  secession 
of  the  State  from  the  Union,  the  Indemnity  Bonds,  or  so  many 
of  them  as  remained  in  the  State  Treasury,  were  indisputably 
the  property  of  Texas.  As  its  property,  the  State,  in  the  opin- 
ion of  the  court,  had  the  right,  and  from  the  first  exercised 
it,  of  imposing  certain  restrictions  upon  the  transfer  and  alien- 
ation of  the  bonds, — restrictions  which  the  holders  must  ac- 
cept and  abide  by  on  receipt.  A  disregard  of  the  State  law, 
therefore,  worked  forfeiture  upon  the  bonds  transferred.  The 
court  held  that  the  repealing  act  was  inoperative  and  void,  since 

cials  who  put  themselves  in  the  way  of  reconstruction;  and  that  their 
successors  may  be  elected  by  Universal  suffrage,  but  I  would  not  have 
military  commanders  authorized  to  appoint  their  successors,  unless 
temporarily;"  .  .  .  See  also  letter  to  Gen.  Schofield,  May  7,  1865, 
Forty-six  Years  in  the  Army,  373.  Letter  to  Justice  S.  J.  Field,  en- 
dorsing the  work  of  the  Committee  on  Reconstruction.  Warden, 
Chase,  526 ;  Hart,  Chase,  339,  340. 

The  opinion  of  the  court,  in  this  particular  connection,  has  not  had, 
as  yet,  any  noticeable  effect  upon  subsequent  legal  history.  So  far  as 
the  writer  is  aware,  it  has  not  been  referred  to  for  a  controlling  prece- 
dent in  any  later  case.  On  the  other  hand,  there  have  been  opinions 
and  decisions  which  have  gone  far  to  overthrow  the  doctrine  which 
Chief  Justice  Chase  here  enunciated.  The  opinion,  indeed,  in  Minor  v. 
Happersett  is,  in  effect,  contradictory.  In  this  case,  decided  in  1874 
(21  Wallace,  162),  the  plaintiff,  a  woman,  denied  that  the  government 
of  the  State  of  Missouri  was  republican  in  form  because  it  restricted 
the  elective  franchise  to  males,  thus  debarring  without  cause  many 
eligible  citizens.  Chief  Justice  Waite,  supported  by  the  unanimous  court, 
declared,  in  this  case,  that  "The  guaranty  is  of  a  republican  form  of 
government.  No  particular  government  is  designated  as  republican, 
neither  is  the  exact  form  to  be  guaranteed,  in  any  manner  especially 
designated.  Here,  as  in  other  parts  of  the  instrument,  we  are  com- 
pelled to  resort  elsewhere  to  ascertain  what  was  intended. 

"The  guaranty  necessarily  implies  a  duty  on  the  part  of  the  States 
themselves  to  provide  such  a  government.  All  the  States  had  govern- 
ments when  the  Constitution  was  adopted.  In  all  the  people  partici- 
pated to  some  extent,  through  their  representatives  elected  in  the  man- 
ner specially  provided.  These  governments  the  Constitution  did  not 
change.  They  were  accepted  precisely  as  they  were,  and  it  is,  therefore, 
to  be  presumed  that  they  were  such  as  it  was  the  duty  of  the  States 


The  Opinion  of  the  Court  77 

it  was  adopted  at  a  time  when  the  State  government  was  in 
armed  hostility  to  the  government  of  the  United  States.  The 
contract,  also,  between  the  Military  Board  and  White  and 
Chiles  was  without  standing  in  law,  since  it  was  made  in  de- 
liberate furtherance  of  the  Confederate  cause. 

The  court  admitted  the  argument  that  the  State  government 
of  Texas  was,  at  least  for  some  purposes,  a  de  facto  govern- 
to  provide.  Thus  we  have  unmistakable  evidence  of  what  was  repub- 
lican in  form,  within  the  meaning  of  that  term  as  employed  in  the  Con- 
stitution." 

Here  is  a  more  or  less  direct  return  to  the  historical  interpretation 
of  the  clause,  and,  in  addition,  a  general  statement  as  to  the  nature 
of  a  republican  form.  The  idea  seems  to  be  entertained  that  a  repre- 
sentative government  is  republican  in  form.  Whether  or  not  this  is 
the  only  form  that  is  republican,  the  court  does  not  state,  but  that  the 
framers  had  such  a  conception  of  the  nature  of  a  republican  form, 
the  court  was  then  convinced. 

In  the  matter  of  /;:  re  Duncan  (139  U.  S.,  449;  also  cf.  Crampton  v. 
Zabriskie,  101  U.  S.,  601),  an  appeal  from  the  State  of  Texas  in  which 
it  was  declared  that  on  several  grounds  the  laws  of  that  State  were  in- 
compatible with  a  republican  form  of  government,  the  court,  speaking 
through  Chief  Justice  Fuller,  emphatically  endorsed  the  argument  of 
Webster  in  the  controlling  case  of  Luther  v.  Borden.  There  is  also,  in 
this  case,  a  further  development  of  the  idea  of  the  nature  of  republi- 
can government  which  was  held,  to  some  degree,  in  Minor  v.  Happer- 
sett :  "By  the  Constitution,  a  republican  form  of  government  is  guaran- 
teed to  every  State  in  the  Union,  and  the  distinguishing  feature  of  that 
form  is  the  right  of  the  people  to  choose  their  own  officers  for  govern- 
mental administration,  and  pass  their  own  laws  in  virtue  of  the  legis- 
lative power  reposed  in  representative  bodies,  whose  legitimate  acts 
may  be  said  to  be  those  of  the  people  themselves ;  but,  while  the  people 
are  thus  the  source  of  political  power,  their  governments,  National  and 
State,  have  been  limited  by  written  Constitutions,  and  they  have  them- 
selves thereby  set  bonds  to  their  own  power,  as  against  the  sudden 
impulses  of  mere  majorities."  In  this  and  all  other  cases  in  which 
this  subject  lias  been  involved,  there  is  consistent  opinion  to  the  effect 
that  the  duty  of  guaranteeing  to  the  States  republican  forms  of  govern- 
ment is  reposed  in  the  political  power.  In  Minor  v.  Happersett,  how- 
ever, the  idea  is  presented  that  the  States  must  provide  the  govern- 
ment which  it  desires  the  United  States  to  guarantee.  In  the  last 
case  mentioned,  In  re  Dun  ran,  the  court  states  that  representative 
governments  have  been  considered  republican  in  form.  This  idea  was 
reiterated  with  enthusiasm,  in  1900,  when  the  matter  came  up  in  the 
case  of  Taylor  and  Marshall  v.  Beckham  (178  U.  S.,  548).  The  en- 
tire question  of  republican  form  of  government  was  examined  anew 
in  the  unique  rases  of  the  Pacific  Slates  Telephone  and  Telegraph  Com- 


78  Texas  v.  White 

ment  which  could  transact  legal  business  and  pass  valid  laws. 
As  the  only  government  in  the  State,  it  had  performed  the 
ordinary  functions  of  administration,  and  its  acts  were,  to  a 
certain  extent,  effectual  and  legal.  The  law  in  this  regard  was 
considered  by  the  court  to  be  as  follows : 

That  acts  necessary  to  peace  and  good  order  among  citizens, 
such  for  example,  as  acts  sanctioning  and  protecting  marriages 
and  the  domestic  relations,  governing  the  course  of  descents, 
regulating  the  conveyance  and  transfer  of  property,  real  and 
personal,  and  providing  remedies  for  injuries  to  person  and 
estate,  and  other  similar  acts,  which  would  be  valid  if  emanat- 
ing from  a  lawful  government,  must  be  regarded  in  general 
as  valid  when  proceeding   from  an  actual,  though  unlawful 


pany  v.  Oregon  and  of  Kiernan  v.  The  City  of  Portland  (223  U.  S., 
118,  and  Ibid.,  151).  The  legal  points  involved  in  these  cases  were 
precisely  the  same  to  the  extent  that  the  judgment  rendered  in  one 
sufficed  for  the  other.  It  was  claimed  by  the  plaintiffs  that  the  adop- 
tion of  the  initiative  and  referendum  amendment  to  the  State  Con- 
stitution of  Oregon  had  rendered  the  government  of  that  State  un- 
republican  in  form  since  it  had  converted  it  from  a  representative 
government  to  a  pure  democracy.  In  a  masterly  opinion,  Chief  Justice 
White  adopted  practically  in  toto  the  reasoning  of  the  court  in  Luther 
v.  Borden,  and  declared  that  the  enforcement  of  the  guaranty  clause 
resided  in  the  political  department  of  the  government.  He  asserted 
that  an  attempt  on  the  part  of  the  judiciary  to  decide  whether  changes 
made  in  a  State  government  were  republican  or  not  would  result  in 
anarchy.  If  the  political  power  recognized  the  change  as  republican, 
the  decision  was  binding  on  the  courts.  As  regarding  the  idea  of  the 
court  assuming  jurisdiction,  he  said:  "The  suggestion  but  results  from 
failing  to  distinguish  between  things  which  are  widely  different,  that 
is,  the  legislative  duty  to  determine  the  political  questions  involved, 
in  deciding  whether  a  State  government  republican  in  form  exists, 
and  the  judicial  power  and  ever-present  duty  whenever  it  becomes 
necessary  in  a  controversy  properly  submitted  to  enforce  and  uphold 
the  applicable  provisions  of  the  Constitution  as  to  each  and  every 
exercise  of  governmental  power."  The  power  of  Congress,  as  granted 
by  the  Constitution,  was  carefully  recognized  and  respected.  Unques- 
tionably the  legislative  department  has  the  ultimate  and  the  real  power 
of  enforcing  the  guaranty  clause.  A  state  may  change  its  government 
or  that  government  may  be  changed  from  whatever  cause  and  in  what- 
ever manner,  and  the  change  per  se  will  be  valid  if  Congress  so  de- 
cides. But  the  acts  of  the  changed  government  and  of  Congress  must 
conform  to  the  provisions  and  restrictions  of  the  Constitution.  If  un- 
constitutional acts   are  committed  by  virtue  or   result  of   the  change 


The  Opinion  of  the  Court  79 

government ;  and  that  acts  in  furtherance  or  support  of  rebel- 
lion against  the  United  States,  or  intended  to  defeat  the  just 
rights  of  citizens,  and  other  acts  of  like  nature,  must,  in  gen- 
eral, be  regarded  as  invalid  and  void.42 

Having  arrived  at  these  conclusions,  the  court  made  short  work 
of  the  arguments  of  the  defendants  that  the  law  creating  the 
Military  Board  was  a  legal  measure  for  the  legitimate  defense 
of  the  State,  and  that  the  contract  with  White  and  Chiles  was 
a  humanitarian  act.  The  law  of  the  State  was  held  to  be  out- 
side the  constitutional  rights  of  the  States  to  take  measures 
to  defend  themselves  against  foreign  invasion  and  domestic 
violence.  The  court,  also,  refused  to  sustain  the  contention 
that  the  contract  was  negotiated  with  innocent  purpose,  and 
held  throughout  that  it  was  made  in  support  of  the  cause  of 
rebellion.  It  was,  therefore,  the  decision  of  the  court  that  the 
title  of  the  State  of  Texas  had  not  been  divested  by  the  con- 
tract entered  into  by  the  agents  of  the  insurgent  State  govern- 
ment. 

The  contract  being  illegal,  and  White  and  Chiles  being  un- 
lawful possessors  of  the  bonds,  it  was  held  that  no  one  could 
make  a  valid  purchase  of  them  from  these  parties,  if  it  was 
known  that  these  holders  had  no  defensible  title.  The  doc- 
trine had  been  laid  down  in  the  case  of  Murray  v.  Lardner43 

or  by  Congress  in  enforcing  the  guarantee  of  republican  government, 
the  court  can  and,  according  to  the  Chief  Justice,  will,  rectify  them. 

In  none  of  these  cases  is  the  attempt  made  to  define  exactly  and  pre- 
cisely what  constitutes  a  republican  form  of  government.  It  would 
seem  that  the  earlier  attitude  was  that,  in  some  way,  the  representa- 
tive element  must  be  maintained  as  essential  to  the  form.  If  such  was 
the  conception  of  republican  government,  it  did  not,  at  the  time  of  the 
formation  of  the  Constitution,  secure  an  expression  in  that  instrument. 
The  matter  perforce  is  left  to  the  decision  of  each  generation,  al- 
though that  decision  is  restricted  by  constitutional  forms. 

a  7  Wallace,  733.  For  general  discussion  of  the  legality  or  illegal- 
ity of  the  acts  of  the  Confederacy,  the  seceding  States,  and  of  their 
subjects  and  citizens,  see  Shortridge  &  Co.  v.  Macon  (Chase  Decisions, 
136)  ;  Keppel's  Admrs.  v.  Petersburg  R.  R.  Co.,  (Ibid.,  167)  ;  Pedicaris 
v.  Charleston  Gas  Light  Co.,  (Ibid.,  435)  ;  Walker  v.  Christian,  (21 
Grat.,  301)  ;  Mauran  v.  The  Insurance  Co.,  (6  Wallace,  1)  ;  The  Price 
Cases,  (2  Black,  636). 

<;,2  Wallace,  118. 


80  Texas  v.  White 

that  a  bona  fide  purchase  of  bonds,  in  fair  exchange,  was  a 
lawful  transaction ;  and  that,  to  be  successfully  challenged  in 
court,  it  must  be  proved  that  the  element  of  good  faith  was 
absent.  The  State  must,  therefore,  establish  the  fact  that  those 
who  had  purchased  the  bonds  had  had  notice  of  the  defective 
title  of  White  and  Chiles.  These  were  the  rules  to  be  observed 
in  case  the  bonds  had  been  transferred  from  the  original  owner 
before  maturity.  The  contract  between  the  Military  Board  and 
White  and  Chiles  had  been  executed  after  the  bonds  had 
matured,  or,  at  least,  had  become  redeemable,  a  distinction,  in 
this  case  with  effect.  According  to  the  law,  the  purchasers 
of  such  bonds  had  no  other  right  or  title  than  that  of  those 
from  whom  the  purchase  was  made.44  White  and  Chiles, 
having  no  legal  title,  it  followed  that  the  other  holders  had 
none.  The  court,  furthermore,  held  that  due  notice  had  been 
given  in  the  New  York  newspapers  that  White  and  Chiles  were 
in  unlawful  possession  of  the  bonds.  Those  who  bought  bonds 
of  them,  therefore,  had  done  so  despite  this  warning.  They 
had  purchased  them  without  good  faith,  and  had  no  legal 
title.  The  injunction,  therefore,  was  granted  against  the  per- 
sons named  in  the  bill. 

The  Effect  of  Payment  by  the  Treasury 

As  to  the  effect  produced  in  law  by  the  payment  of  the 
bonds  of  some  of  the  defendants  by  the  United  States  Treas- 
ury, it  was  decided  that  this  action  "could  not  affect  the  rights 
of  Texas  as  a  State  of  the  Union,  having  a  government  ac- 
knowledging its  obligations  to  the  National  Constitution."  The 
determination  of  the  exact  effects  of  the  payment  by  the  Treas- 
ury Department  was  left  to  a  future  hearing, — the  matter  was 
not  cleared  up  in  either  the  opinion  of  the  court  or  in  the 
decree. 

The  Dissenting  Opinions 
The  decision  of  the  court  was  rendered  by  a  vote  of  five  to 
three,  the  court  then  having  eight  members.     With  the  Chief 
Justice  were  joined  Justices  Clifford,  Davis,  Field,  and  Nelson ; 


Goodman  v.  Simonds,  20  Howard,  343. 


The  Opinion  of  the  Court  81 

and,  in  opposition,  were  Justices  Grier,  Miller  and  Swayne. 
Messrs.  Swayne  and  Miller  thought  that  Texas  was  incapable, 
in  her  condition  then,  of  maintaining  and  prosecuting  a  suit 
in  the  Supreme  Court.  In  addition  to  denying  Texas  the  right 
of  invoking  the  original  jurisdiction,  which  would  have  dis- 
missed the  case,  they  thought  that  it  was  a  question  in  which 
the  court  was  bound  by  the  action  of  the  legislative  department 
of  the  government.  It  is  to  be  presumed,  perhaps,  that  the 
Justices  had  in  mind  the  enforcement  of  the  guaranty  clause. 
Congress  by  declaring  the  existing  governments  in  the  South- 
ern States  to  be  illegal  had  refused  to  recognize  them  as  being 
established  and  republican  in  form.  The  court,  according  to 
this  presumption,  would  be  debarred  from  admitting  a  suit 
from  a  government  of  such  questionable  standing.  On  the 
merits  of  the  case,  these  Justices  concurred  with  the  majority 
of  the  court.  Mr.  Justice  Grier,  however,  objected  to  the  de- 
cision on  all  the  points  raised.  His  dissenting  opinion  is  a 
very  interesting  and  spirited  document. 

To  the  question:  Is  Texas  one  of  these  United  States?  he 
answered  a  decided  negative.  ''This  is  to  be  decided,"  he  said, 
"as  a  political  fact,  not  as  a  legal  fiction.  This  court  is  bound 
to  know  and  notice  the  public  history  of  the  nation."  He 
maintained  that  after  considering  the  history  of  Texas  during 
the  time  intervening  between  the  attempt  at  secession  and  the 
filing  of  the  suit,  he  failed  to  discover,  at  any  part  of  that 
period,  the  attributes  of  Statehood.  The  common  sense  view, 
he  maintained,  was  outlined  in  the  case  of  Hepburn  &  Dundass 
v.  Bllxey  by  Chief  Justice  Marshall,  and  he  claimed  that  the 
test  supplied  in  that  opinion  for  the  ascertainment  of  the  nature 
of  a  political  community  in  the  American  Union  was  appli- 
cable to  this  case.  When  Marshall's  definition  was  applied  to 
the  facts  of  Texas  history,  it  proved  definitely  that  that  com- 
monwealth was  not  a  State  in  the  Union,  since  there  were  no 
representatives  in  Congress  accredited  to  her,  and  since  the 
pretended  State  had  not  participated  in  the  last  election  of 
president.  Instead,  she  was  governed  as  a  conquered  province 
by  military  power.     The  legislative  power,   furthermore,  had 


82  Texas  v.  White 

declared  that  Texas  was  a  "rebel  State"  without  legal  and 
republican  government.  What  was  the  difference,  he  inquired, 
between  her  status  and  that  of  the  territories  or  the  Indian 
tribes.  In  the  absence  of  organized  rebellion,  they  were  es- 
sentially alike  in  the  fact  that  they  were  similarly  governed, 
and  in  that  justice  was  administered  by  the  United  States 
courts.  The  fact  that  the  federal  courts  were  in  operation 
was  no  test  of  the  existence  of  the  State.  "Dacotah  is  no 
State,"  he  said,  "and  yet  the  United  States  courts  administer 
justice  there." 

He  argued  that  as  a  fact  Texas  was  not  politically  in  the 
Union.    In  summing  up  his  opinion,  he  said : 

I  do  not  consider  myself  bound  to  express  an  opinion  judicially 
as  to  the  constitutional  right  of  Texas  to  exercise  the  rights  and 
privileges  of  a  State  of  this  Union,  or  of  the  power  of  Con- 
gress to  govern  her  as  a  conquered  province,  to  subject  her  to 
military  domination,  and  keep  her  in  pupilage.  I  can  only  sub- 
mit to  the  fact  as  decided  by  the  political  position  of  the  gov- 
ernment;  and  I  am  not  disposed  to  join  in  any  essay  to  prove 
Texas  a  State  in  the  Union  when  Congress  have  decided  that 
she  is  not.  It  is  a  question  of  fact,  I  repeat,  and  of  fact  only. 
Politically,  Texas  is  not  a  State  in  this  Union.  Whether  right- 
fully out  of  it  or  not  is  a  question  not  before  the  court. 

Justice  Grier,  therefore,  in  strict  logic  and  with  judicial  con- 
sistency, refused  to  join  in  the  attempt  to  harmonize  the  Con- 
gressional plan  with  the  public  law. 

Whether,  conceding  the  continued  existence  of  the  State, 
she  had  the  right  to  repudiate  her  contracts,  he  considered  ir- 
relevant to  the  present  case.  The  payment  of  the  bonds  by  the 
United  States  would  not  have  assisted  the  agents  of  the  rebel- 
lion. "It  is  a  matter  of  utter  insignificance  to  the  government 
of  the  United  States  to  whom  she  makes  the  payment  of  these 
bonds.  They  are  payable  to  the  bearer."  On  this  point,  the 
justice  was  at  variance  with  all  his  brothers  of  the  court  and 
with  the  policy  of  the  United  States  government ;  it  had  be- 
come a  well  established  principle  that  acts  done  in  assistance 
of  the  insurrection  against  the  United  States  were  void,  and 
that  property  dedicated  to  such  purposes  was  liable  to  seizure 


The  Opinion  of  the  Court  83 

and  confiscation.  The  dissenting  Justice  was,  perhaps,  on 
stronger  ground,  when  he  said,  in  defense  of  the  main  con- 
tention : 

Having  relied  on  one  fiction,  namely,  that  she  is  a  State  in  the 
Union,  she  now  relies  upon  a  second  one,  which  she  wishes  this 
court  to  adopt,  that  she  was  not  a  State  at  all  during  the  five 
years  that  she  was  in  rebellion.  She  now  sets  up  the  plea  of 
insanity,  and  asks  the  court  to  treat  all  her  acts  made  during 
the  disease  as  void. 

On  the  contrary,  he  claimed  that  the  act  of  secession  was  the 
sovereign  act  of  a  sovereign  State;  that  the  government  of  the 
State  during  the  period  when  the  question  of  the  right  to  se- 
cede was  being  decided  by  war  was  as  much  the  government  of 
the  State  as  that  State  had  had  before  the  crisis;  and  that  the 
war,  while  deciding  the  question  of  secession,  had  not  decided 
that  the  State  could  repudiate  contracts  made  with  her  own 
citizens  for  food,  clothing,  and  medicines.  This  was  a  contest 
between  Texas  and  her  own  citizens,  and,  in  case  there  had 
been  fraud  or  illegal  practice,  the  State  had  recourse  to  her 
own  courts.  But  her  representatives  should  not  set  up  a  plea 
of  illegality  on  the  part  of  the  de  facto  government  which 
made  the  contract. 

The  same  "organized  political  body,"  exercising  the  sovereign 
power  of  the  State,  which  required  the  indorsement  of  these 
bonds  by  the  governor,  also  passed  the  laws  authorizing  the  dis- 
posal of  them  without  such  indorsement.  She  cannot,  like  the 
chameleon,  assume  the  color  of  the  object  to  which  she  adheres, 
and  ask  this  court  to  involve  itself  in  the  contradictory  posi- 
tions, that  she  is  a  State  in  the  Union  and  never  out  of  it,  and 
yet  not  a  State  at  all  for  four  years,  during  which  she  acted 
and  claimed  to  be  "an  organized  political  body,"  exercising  all 
the  powers  and  functions  of  an  independent  sovereign  State. 
Whether  a  State  de  facto  or  de  jure  she  is  estopped  in  denying 
her  own  identity  in  disputes  with  her  own  citizens. 

The  Justice  refused  to  follow  the  court  in  declaring  that  for 
some  purposes  the  de  facto  government   of  Texas  was  legal 
and  its  acts  valid,  and,  for  other  purposes,  illegal  and  void. 
In  the  case  of  Hardenberg,  he  insisted  that  the  purchase  of 


84  Texas  v.  White 

the  bonds  was  bona  fide  and  for  a  full  consideration.  He  said 
that  the  argument  of  the  court,  in  granting  a  judgment  in  favor 
of  Texas,  was  as  follows : 

These  bonds,  though  payable  to  the  bearer,  are  redeemable 
fourteen  years  from  date.  The  government  has  exercised  her 
privilege  of  paying  the  interest  for  a  term  without  redeeming 
the  principal,  which  gives  an  additional  value  to  the  bonds. 
Ergo,  the  bonds  are  dishonored.  Br  go,  the  former  owner  has 
a  right  to  resume  the  possession  of  them,  and  reclaim  them 
from  a  bona  fide  owner  by  a  decree  of  a  court  of  equity. 

Aside  from  the  fact  that  the  Justice  here  held  his  brethren  up 
to  rather  severe  ridicule,  the  statement  was  unimportant,  since 
it  did  not  reveal  a  full  comprehension  of  the  issues  involved. 
On  this  point,  however,  as  on  the  others,  he  opposed  to  the  de- 
cree of  the  court  this  epigrammatic  statement, 

A  court  of  chancery  is  said  to  be  a  court  of  conscience;  and 
however  astute  may  be  the  argument  introduced  to  defend  this 
decree,  I  can  say  only  that  neither  my  reason  nor  my  conscience 
can  give  assent  to  it. 

The  Decree 

The  decree,  after  some  preliminary  and  formal  considera- 
tions, declared  the  contract  between  the  Military  Board  and 
White  and  Chiles,  made  January  12,  1865,  to  be  null,  void, 
and  of  no  effect ;  and  ordered 

that  the  said  White  and  Chiles,  and  their  agents  and  attorneys, 
and  all  others  claiming  to  act  in  their  behalf,  be  perpetually  en- 
joined from  asserting  any  right  or  claim  under  the  same;  and 
that  the  complainant  is  entitled  to  recover  and  receive  the 
bonds  and  coupons  mentioned  in  the  said  contract,  as  having 
been  transferred  or  sold  to  the  said  White  and  Chiles,  which 
at  the  several  times  of  service  of  process  in  this  suit  were  in  the 
possession  or  control  of  the  defendants  respectively,  and  any 
proceeds  thereof  which  have  come  into  such  possession  or  con- 
trol with  notice  of  the  equity  of  the  complainant.45 

It  was  ordered  more  specifically  that  the  defendants  were 
enjoined  from  setting  up  any  claim  to  the  bonds  mentioned  as 

45 25  Texas   (Supp.)   Reports,  618.     The  preceding  paragraph  of  the 
decree  decided  the  matter  of  the  authority  of  the  prosecuting  attorneys. 


The;  Opinion  of  the;  Court  85 

having  been  actually  transferred  by  the  Military  Board,  that 
is,  to  the  135  bonds  transferred  to  White  and  Chiles,  or  to  the 
seventy-six  bonds  in  the  hands  of  Droege  &  Company,  of 
Manchester,  England.  Such  of  these  bonds  as  were  then  in 
the  possession  of  the  defendants  were  declared  the  rightful 
property  of  the  State  of  Texas,  and  the  holders  were  ordered 
to  restore  them.  In  pursuance  of  this  decree,  the  court  decided 
upon  the  number  of  bonds  the  various  defendants  were  ac- 
countable for  as  follows : 

Birch,  Murray  &  Company,  8,46  George  W.  Stewart,  4; 
Birch,  Murray  &  Company,  4;47  John  A.  Hardenberg,  34. 

The  effect  of  the  redemption  of  certain  bonds  by  the  United 
States  Treasury  was  reserved  by  the  court  for  later  decision. 
In  order  to  facilitate  a  rapid  settlement  of  the  various  interests 
involved  and  as  yet  undecided,  the  court  promised  to  enter- 
tain requests  for  advice  and  direction  from  either  or  both 
sides.48 


*  These  were  the  eight  bonds  on  deposit  in  the  United  States  Treas- 
ury. 

"  These  bonds  and  those  of  Hardenberg  had  been  "redeemed"  by 
the  Treasury. 

4S  The  decree  is  to  be  found  in  an  abridged  form  in  the  Supreme 
Court  report  of  the  case,  7  Wallace,  741.  In  its  full  form,  it  is  repro- 
duced in  Paschal's  Texas  (Supp.)     Reports,  25,  pp.  617-620. 


CHAPTER  IV 

SUBSEQUENT   LITIGATION 

Texas  v.  Hardenberg 

As  has  already  been  remarked,  the  decision  and  decree  in 
the  case  of  Texas  v.  White  left  the  settlement  of  many  of  the 
points  involved  to  later  proceedings.  The  first  case  which  arose 
in  this  process  of  legal  adjustment  was  that  of  Texas  v.  Har- 
denberg.1 The  bonds  held  by  Hardenberg  had  been  redeemed 
under  an  agreement  which  has  already  been  noticed.  When 
the  court  decreed  that  the  defendants  were  liable  to  suit  for 
the  recovery  of  the  indemnity  bonds,  Hardenberg  was  in- 
cluded in  spite  of  the  fact  that  his  bonds  had  been  paid.  Under 
these  circumstances,  Texas  sued  in  the  Supreme  Court  for  the 
delivery  of  the  bonds  or  their  proceeds.  In  answer  to  the 
bill  in  this  suit,  Hardenberg  endeavored  to  reopen  the  discus- 
sion of  the  merits  of  the  original  case  by  reviewing  the  history 
of  his  purchase  and  attempting  to  show  that  this  action  had 
been  in  good  faith.  He  urged  further  that  his  bonds  had  been 
paid  by  the  United  States,  and  that  his  counsel  should  be  heard 
as  to  the  effect  in  law  of  a  payment  which  had  taken  place  be- 
fore he  had  been  served  with  notice  of  a  contest  by  the  court  of 
Texas.  On  the  whole,  he  argued  that  there  had  been  an  error 
of  pleading  in  the  original  case  and  that  the  bill  had  only 
prayed  for  the  rendition  of  the  bonds,  not  the  proceeds.2 

The  opinion  of  the  court  was  delivered  by  Chief  Justice 
Chase.  The  court,  at  the  outset,  declined  to  consider  the  bill 
in  the  case  of  Texas  v.  White  to  be  of  the  narrow  and  re- 
stricted character  assigned  to  it  by  the  defendant.  To  interpret 
it  so  it  would,  it  was  alleged,  savor  of  "extreme  technicality." 
The  clause  of  the  bill  asking  expressly  for  the  injunction  and 
decree  had  also  petitioned  for  such  other  comfort  as  the  court 
might  see  fit  to  allow.  This  clause  was  considered  sufficiently 
general   and   broad   to   render   possible   the   inclusion   of   the 


1 10  Wallace,  68,  decided  December  term,   1869. 
2  Paschal  and  Merrick  for  Texas ;  Carlisle  and  Evarts  for  Harden- 
berg. 


Subsequent  Litigation  87 

matters  sought  for  by  the  complainant.  The  court  then  passed 
to  a  consideration  of  the  other  contentions  of  Hardenberg. 
The  bill  in  Texas  v.  White  had  been  filed  in  the  Supreme  Court 
on  February  15,  1867,  and  Hardenberg  was  served  with  the 
subpoena  on  the  27th  of  that  month.  He  had  received  pay- 
ment of  his  bonds  on  the  16th.  The  court  questioned  the  valid- 
ity and  actuality  of  this  payment;  and.  in  addition,  held  that 
the  complaints  of  the  Texas  agents  at  the  treasury  with  which 
Hardenberg  was  admittedly  familiar,  the  institution  of  the 
suit  in  the  case  of  Texas  v.  McCulloch,  and  the  repeated  post- 
ponement of  the  payment  of  his  bonds  by  the  treasury  collec- 
tively constituted  notification  of  the  fact  that  Texas  claimed 
the  bonds  and  would  contest  the  possession  of  them  with  him. 
It  was  held  that  the  correspondence  between  the  treasury  offi- 
cials and  Hardenberg,  the  negotiations  of  counsel,  and  the  arti- 
cles of  agreement  between  Hardenberg  and  McCulloch  contain- 
ed demonstrative  proof  of  the  fact  that  Hardenberg  was  aware 
of  the  action  of  Texas.  It  was,  therefore,  unimportant  to  in- 
quire whether  the  delivery  of  the  coin  check  had  preceded  the 
service  of  the  process.  The  payment  of  the  bonds,  moreover, 
had  not  been  real.  As  the  comptroller  had  said  in  a  letter  to 
Chase,  "In  form  the  bonds  had  been  paid ;  in  fact  the  proceeds 
had  been  withheld  from  Mr.  Hardenberg,  because  of  the  legal 
proceedings."  These  proceeds,  the  court  ordered  to  be  turned 
over  to  the  Texas  representatives. 

In  conformity  with  this  order,  Hardenberg  paid  the  pro- 
ceeds of  his  thirty-four  bonds  into  the  hands  of  Mr.  Paschal.3 

Texas  v.  Chiles 

This  case  grew  out  of  what  was  supposed  to  have  been  an 
error  on  the  part  of  Chiles  in  the  accounting  for  bonds  which 
he  submitted  in  the  case  of  Texas  v.  White.  In  that  case,  he 
and  his  co-defendants  had  accounted  for  some  fifty-one  bonds, 
and  the  decree  had  provided  for  the  restoration,  immediately 


3  Similar  proceedings  were  taken  to  secure  payment  of  the  Stewart 
bonds.  It  appears,  however,  that  these  wire  paid  to  the  clerk  of  the 
Supreme  Court.  This  case  was  one  of  those  which  wvrv  unreported  for 
a  long  time.    It  is  to  hi-  found  in  131  U.  S.,  xcvii. 


88  Texas  v.  White 

or  ultimately,  of  these  bonds  or  the  proceeds  to  the  com- 
plainant. There  had  been,  however,  no  specific  decree  against 
any  bonds  in  the  possession  of  Chiles.  Texas  now  entered  a 
motion  in  the  Supreme  Court  for  a  rule  on  Chiles  that  he 
might  be  forced  to  give  up  twelve  bonds  which  were  alleged 
to  be  a  part  of  those  concerned  in  the  transfer  from  the  Mili- 
tary Board  to  White  and  Chiles.  This  allegation  was  based 
partly  on  the  answer  of  White,  which  had  claimed  that  Chiles 
had  ten  bonds  unaccounted  for,  partly  on  a  deposition  of  a 
man  named  McKinley  to  the  same  effect,  and  partly  on  an 
affidavit  of  one  George  Taylor  that  Chiles  had  admitted  to 
him  that  he  had  two  bonds  on  deposit  in  a  Kentucky  bank.  It 
was  claimed  by  the  Texas  lawyers  that  these  bonds  were  now 
subject  to  the  order  of  the  court.  Chiles  claimed  that  the  bonds 
had  been  acquired  after  the  service  of  the  injunction  process 
and  even  after  the  issuance  of  the  decree.  It  must  be  proved, 
he  maintained,  that  the  bonds  were  among  those  transferred  to 
White  and  Chiles. 

Mr.  Justice  Nelson  read  the  opinion  of  the  court.  It  was 
held,  in  the  first  place,  that  the  evidence  derivable  from  the 
answer  of  White  was  not  competent  in  this  case.  The  facts, 
as  presented  by  the  State,  were,  moreover,  before  the  court 
when  the  decree  was  issued.  The  evidence  had  at  that  time 
been  insufficient  to  warrant  an  order  against  Chiles,  and  it 
was  still  inconclusive.  The  bill  in  the  original  case  had  limited 
the  accounting  to  the  bonds  in  possession  of  the  defendants  to 
those  possessed  at  the  time  of  service.  The  motion  was,  there- 
fore, denied. 

In  re  Paschal* 

The  immediate  cause  of  the  legal  proceedings  in  this  matter 
was  the  entertainment  of  two  motions  by  the  Supreme  Court ; 
ultimately  the  causes  reach  farther  and  deeper  and  lead  to  a 
consideration  of  a  factional  controversy  in  Texas  political  his- 
tory. The  first  motion  was  for  an  order  that  George  W.  Pas- 
chal pay  to  the  clerk  of  the  court  the  sum  of  $47,325  in  gold, 
an  amount  which  he  was  alleged  to  have  received  through  the 


4 10  Wallace,  483. 


Subsequent  Litigation  89 

enforcement  of  the  decree  in  the  case  of  Texas  v.  White  and 
which  was  properly  due  to  the  State.  The  second  motion  was 
for  a  rule  removing  Paschal's  name  from  the  docket  as  counsel 
in  the  case  of  Texas  v.  Pcabody's  Executors. 

The  accession  of  Edmund  J.  Davis  as  governor  of  Texas, 
in  1870,  meant  that  the  faction  of  the  Republican  party  to 
which  Paschal  belonged  would  be  thrown  out  of  power.  If 
the  letters  which  passed  between  the  two  men  are  to  be  taken 
as  authoritative  evidence,  it  seems  clear  that  the  governor  had 
conceived  a  rather  violent  political  antipathy  to  Mr.  Paschal. 
The  actual  break  in  their  official  relations  came  in  the  dismissal 
of  Paschal  as  legal  and  financial  representative  of  the  State  and 
in  the  appointment  to  that  position  of  Thomas  J.  Durant. 
Paschal  had  foreseen  this  outcome  and  had  written  that,  "as 
I  do  not  belong  to  his  wing  of  the  Republican  party,  and  [as] 
he  is  one  of  those  extreme  ab  initio  radicals,  who  believe  that 
every  official  act  from  secession  to  the  present  day  is  void,  it 
may  be  after  his  inauguration,  that  my  control  over  the  con- 
troversy may  cease."5  On  March  25,  1870,  Governor  Davis, 
in  an  official  communication,  notified  Paschal  of  his  removal 
and  requested  that  "you  will  please  pay  over  to  Hon.  T.  J. 
Durant  the  amount  of  money,  bonds,  and  coupons  in  your 
hands  belonging  to  the  State,  and  out  of  the  same  that  gen- 
tleman is  authorized  to  pay  you  a  reasonable  compensation 
for  your  services."6  In  case  Paschal  refused  obedience  to  this 
order,  Durant  was  empowered,  in  the  name  of  the  State,  to 
take  legal  measures  to  compel  it.  Paschal  refused  to  comply, 
and  the  case  under  consideration  was  the  result.  A  long  and 
at  times  acrimonious  correspondence  followed  between  the 
various  parties,  in  which  the  motives  of  all  concerned  were 
aired  with  partisan  frankness. 

Paschal  had  collected  from  the  defendants  in  the  case  of 
Texas  v.  White  $47,325,  in  which  sum  were  the  proceeds  from 
the  Hardenberg  bonds  and  those   from  the  bonds  of    Birch, 


'Letter   to  Droege  &  Co.,   Record  of  Cases,   1876,    102    (Supreme 
Court  Library). 

'Ibid.,  p.  31.    Davis  to  Paschal. 


90  Texas  v.  White; 

Murray  &  Company.  Out  of  this  sum,  he  claimed  to  have 
spent  $13,356  for  various  expenses  and  costs  incident  to  the 
prosecution  of  the  case.  A  large  part  of  this  disbursement,  ac- 
cording to  the  itemized  statement  which  he  submitted,  had 
gone  to  the  three  lawyers  who  had  assisted  him.  As  he  had 
taken  none  for  himself,  the  remainder  of  the  sum  was  intact. 
He  maintained  that  the  State,  for  various  claims,  owed  him 
the  large  sum  of  $102,525,  and  that  after  he  had  deducted  the 
amount  in  his  possession,  there  would  be  a  remainder  of  more 
than  $68,556  still  due  him.  These  claims  comprised  several 
items.  Paschal  had  been  reporter  of  the  Supreme  Court  of 
Texas  during  several  years,  and  had  undertaken  to  print  his 
reports  for  the  State.  He  had  engaged  to  have  four  hundred 
copies  of  each  volume  of  his  reports  printed  and  bound.  For 
this  service,  he  was  to  receive  seven  dollars  for  each  page  con- 
tained in  the  volume.  He  had  printed  four  volumes,  for  which 
the  compensation,  according  to  the  agreement,  would  have 
been  $28,280.  Of  this  amount,  the  State  still  owed  him,  as  he 
insisted,  $17,577.  The  governor  refused  to  make  a  requisition 
for  this  amount,  and  even  ordered  the  State  Treasurer  to 
ignore  Paschal's  demands.  Whatever  Governor  Davis  thought 
of  the  printing,  or  of  the  contract  under  which  the  work  was 
accomplished,  he  submitted  no  proof  of  improper  conduct  on 
the  part  of  Paschal.  In  his  second  claim,  Paschal  estimated 
his  services  in  the  Texas  v.  White  case  at  $20,000.  This 
estimate,  Davis  pronounced  to  be  absurd  and  exorbitant.  There 
had  been  no  definite  agreement  between  Paschal  and  the 
State  authorities  regarding  the  compensation  which  he  was  to 
receive.  In  the  absence  of  a  stipulation  for  a  certain  fee,  he 
was,  according  to  his  own  statement,  to  charge  "as  the  re- 
sponsibility, the  expense,  the  time,  the  learning  necessary,  and 
the  services  should  render  proper."7  Such  a  situation  certain- 
ly rendered  a  latitudinous  estimation  of  the  value  of  his  efforts 
probable,  if  not  inevitable.  Governor  Pease  had  written  Pas- 
chal  that   his   compensation   depended  upon   the   action   of   a 


7  Paschal's  affidavit,  record  of  In  re  Paschal,  p.  3.     (Found  in  Record 
of  Cases,  1876,  Supreme  Court  Library). 


Subsequent  Litigation  91 

future  legislature  or  upon  the  amount  of  bonds  collected.  When 
Pease  visited  Washington,  in  1869,  he  made  an  agreement 
with  Paschal  to  collect  the  Peabody  bonds  and  also  those  in 
the  hands  of  Droege  &  Company.  For  the  collection  of  these 
two  sets  of  bonds,  he  was  to  receive  a  compensation  of  25 
and  20  per  cent,  respectively.  In  pursuance  of  this  agree- 
ment, Paschal  had  set  about  energetically  to  collect  the  bonds ; 
and,  if  his  opinion  is  accepted,  had  attained  considerable  suc- 
cess, when  his  efforts  were  thwarted  by  his  removal  as  agent. 
Since  the  only  thing  which  had  prevented  the  accomplishment 
of  his  purpose  had  been  the  interference  of  the  governor,  Pas- 
chal now  claimed  his  full  compensation,  at  least  in  regard  to 
the  Peabody  bonds.  Governor  Davis  repudiated  this  claim  as 
preposterous. 

This  was  the  situation  when  Durant  recommended  that 
Paschal  should  secure  counsel  with  whom  he,  as  the  State's 
agent,  could  treat  in  accordance  with  the  instructions  of  the 
Texas  authorities.  Paschal  obeyed  this  request,  and  employed 
A.  G.  Riddle.  After  long  negotiations  and  much  correspon- 
dence, Durant  proposed  to  honor  the  disbursements  in  the 
case  of  Texas  v.  White,  and  to  pay  Paschal  $5,000  for  his 
services  in  that  case  and  $2,500  for  his  efforts  to  collect  the 
Peabody  bonds.  Paschal  refused  to  accept  the  compromise, 
and  the  matter  was  taken  to  the  Supreme  Court  in  the  form 
mentioned  above. 

As  an  evidence  that  his  service  had  been  long,  disinter- 
ested, and  capable,  Paschal  submitted  for  the  perusal  of  the 
court  the  correspondence  between  himself  and  the  holders  of 
the  Peabody  bonds,  the  firm  of  Dabney,  Morgan  &  Company, 
of  New  York,  and,  in  addition,  that  with  Droege  &  Company. 
These  negotiations  referred  to  the  three  hundred  bonds  which 
Swisher  had  carried  to  England  in  1862. s  It  will  be  recalled 
that  Peabody  bought  one  hundred  and  forty-nine  of  these 
bonds.  Before  he  had  completed  the  payment  for  them,  how- 
ever, he  endeavored  to  secure  a  return  of  his  money  by  suing 


8  See  above  p.  19  N.,  for  an  account  of  the  transaction  and  the  history 
of  Swisher's  activity. 


92  Texas  v.  Whits 

Droege  &  Company.  This  suit  was  made  in  the  English  courts, 
hut  there  seems  to  have  been  no  record  of  a  decision,  although 
a  temporary  injunction  was  granted  him.  On  the  death  of 
Peabody,  his  executors,  Dabney,  Morgan  &  Company,  present- 
ed the  bonds  for  redemption  by  the  United  States.  Against 
this  payment,  the  Texas  agent  protested  unavailingly.  The 
State  endeavored  to  return  the  amount  of  money  which  Pea- 
body  had  spent  for  the  bonds,  but  it  was  not  accepted.  Then 
a  suit  was  begun  in  the  Supreme  Court  against  Peabody's 
executors.  This  case  was  pending  when  Paschal  was  re- 
moved.9 Of  the  one  hundred  and  fifty-one  bonds  which  had 
remained  in  the  hands  of  Droege  &  Company,  a  word  must  be 
said.  Paschal  had  promptly  laid  claim  to  the  bonds,  and  the 
English  firm  seemed  willing  to  compromise  with  the  State. 
This  compromise  had  been  prevented  by  various  injunction 
suits,  such  as  those  of  Chiles  and  Peabody.  Finally,  Paschal 
notified  the  firm  that,  in  case  restitution  was  not  made,  the 
Supreme  Court  would  declare  the  bonds  useless  and  cancelled, 
and  the  United  States  would  pay  them  to  the  State  of  Texas ; 
and  the  costs  to  which  the  house  had  been  put  would,  there- 
fore, be  lost.  Whether  moved  by  this  threat  or  not,  a  represen- 
tative of  Droege  &  Company  was  eventually  sent  to  the  United 
States  to  treat  with  Paschal  about  the  transfer  of  the  bonds. 
The  correspondence  between  the  two  indicates  that  an  agree- 
ment had  practically  been  reached  when  Paschal  was  peremp- 
torily removed  by  the  governor  of  Texas. 

All  of  these  facts  were  presented  to  the  court  as  an  evi- 
dence of  the  fidelity  and  constancy  of  Paschal's  service,  and 
little  effort  was  made  to  controvert  the  fact  or  value  of  this 
service.  In  addition,  he  stated  that,  in  case  the  court  forced 
him  to  pay  the  money  collected  to  Texas,  he  would  have  no 
recourse  under  Texas  law  by  which  his  fees  might  be  secured. 

Mr.  Justice  Bradley  read  the  opinion  of  the  court.     The 


9  The  case  of  Texas  v.  Peabody's  Executors  is  mentioned  on  page 
xcvii  of  131  U.  S.  Reports.  It  is,  however,  one  of  the  unreported  cases 
which  have  been  tried  before  the  Supreme  Court.  The  final  history 
of  the  indemnity  bonds  belongs  to  the  financial  and  fiscal  history  of  the 
State  of  Texas. 


Subsequent  Litigation  93 

court  claimed  jurisdiction  of  this  matter  by  virtue  of  the  con- 
trol it  was  empowered  to  exert  over  its  own  officers  and  the 
members  of  its  own  bar.  There  were  certain  duties  which  a 
lawyer  owed  to  his  client  which  the  court  could  compel  him 
to  perform  without  an  appeal  by  the  client  to  the  ordinary 
courses  of  law,  and,  conversely,  it  might  protect  the  interests 
of  the  faithful  lawyer  in  case  they  were  unfairly  endangered. 
In  this  particular  connection,  it  was  held  that  an  attorney,  in 
case  he  collects  money  for  a  client,  should  pay  over  all  sums 
after  he  had  deducted  the  costs  and  the  disbursements.  The 
question  in  this  case  was :  had  Paschal  retained  the  money  in 
his  hands  in  bad  faith,  and  was  he,  in  consequence,  guilty  of 
such  misconduct  as  would  justify  the  interference  of  the 
court  ?  After  reciting  the  facts  in  the  case,  the  court  held  that 
Paschal  had  not  been  guilty  of  conduct  unbecoming  an  attor- 
ney in  his  relation  with  his  client.  The  claim  he  made  to  the 
money  was  in  good  faith,  and  it  would  be  against  equity  to 
force  him  to  yield  it  up  since,  in  that  case,  he  would  be  with- 
out legal  recourse.  As  to  whether  he  was  justified  in  keeping 
it  all,  or  in  keeping  any,  the  court  considered  it  unnecessary  to 
state.  The  Texas  authorities  could  appeal  to  the  ordinary 
channels  of  the  law,  since  there  was  no  inhibition  preventing 
the  State  from  suing  Paschal.  In  substantiation  of  this  view, 
the  court  cited  the  usage  in  England  and  many  of  the  American 
States  to  prove  that  an  attorney  had  a  lien  upon  money  col- 
lected for  a  client  who  has  not  rewarded  him  for  his  services. 
The  retainer  of  Governors  Hamilton  and  Pease  had  referred 
to  the  bonds  indiscriminately  and  particularly  to  those  of 
White  and  Chiles ;  so  Paschal  had  not  violated  any  agreement 
in  that  respect.  On  these  grounds,  the  motion  to  force  Pas- 
chal to  pay  over  the  money  to  the  State  was  denied. 

The  second  motion,  praying  for  the  removal  of  Paschal  as 
attorney  representing  Texas  was  granted.  Paschal  had  denied 
that  the  governor  had  the  power  to  remove  him  until  he  was 
paid.  He  had  persisted  in  attempting  to  represent  Texas 
until  lie  had  seriously  embarrassed  Durant.  The  court  held 
that  this  was  a  mistaken  view  to  take  of  the  governor's  power. 


94  Texas  v.  White 

The  State  of  Texas  had  the  right  to  dismiss  one  attorney  and 
to  employ  another,  although  the  State  remained  responsible  for 
and  bound  by  contracts  already  entered  into  with  the  attorney 
then  being  dismissed.  Whether  the  State  in  this  particular 
case  remained  liable  for  the  whole  contingent  fee  originally 
promised  Paschal,  or  for  so  much  of  it  as  the  services  were 
worth,  or  for  none  of  it,  the  court  declined  to  say.  However 
this  might  have  been,  the  State  had  the  unquestionable  right 
to  change  representatives.  "The  court  cannot  hesitate  in  per- 
mitting the  State  to  appear  and  conduct  its  causes  by  such 
counsel  as  it  shall  choose  to  represent  it."  The  motion  was, 
therefore,  granted.10 

Huntington  v.  Texas11 

The  cases  previously  considered  were  tried  in  the  Supreme 
Court  by  virtue  of  its  original  jurisdiction,  but  that  now  being 
noticed  was  taken  up  on  appeal  from  the  District  of  Columbia 
courts.  It  was  a  suit  against  William  S.  Huntington,  the 
cashier  of  the  National  Bank  of  Washington,  concerning 
thirty-seven  of  the  Texas  indemnity  bonds.  Ten  of  these 
bonds,  before  they  came  into  the  possession  of  the  bank,  had 
been  the  property  of  a  Mr.  Haas.  He  had  presented  them  to 
the  treasury  officials  for  redemption,  and  they,  as  in  other 
cases,  referred  the  bonds  to  the  Comptroller  for  his  opinion 
as  to  whether  the  department  should  pay  them.  After  a 
favorable  report  had  been  given,  Mr.  Haas  had  secured  a  loan 
from  the  bank,  using  the  bonds  as  security.  The  bonds  were 
accepted,  and  the  money  was  advanced  to  him.  Later  Haas  by 
letter  informed  the  treasury  department  of  his  action,  and  re- 
quested that  the  bonds  be  paid  to  Huntington  as  the  representa- 


10  According  to  the  decision  of  this  matter,  Paschal  retained  posses- 
sion of  the  bonds  and  moneys  in  his  hands  at  the  time  of  his  dismissal 
by  Davis.  During  the  administration  of  the  latter  as  governor  of 
Texas,  no  settlement  or  compromise  of  the  controversy  was  effected. 
Later,  in  1874,  Governor  Coke  was  empowered  to  settle  with  Paschal 
for  the  remainder  of  the  debt  due  him  for  printing  the  Supreme  Court 
reports.  See  Joint  Resolution  No.  12,  Gammel,  Laws  of  Texas,  VIII, 
245-246. 

11 16  Wallace,  402. 


Subsequent  Litigation  95 

tive  of  the  bank,  and  the  request  was  complied  with.  Four- 
teen other  bonds  of  the  thirty-seven  were  owned  by  the  same 
man,  and  the  circuitous  process  of  redemption  was  repeated. 
The  remaining  thirteen  bonds  were  the  property  of  Huntington 
himself.  In  the  interval  between  the  two  payments  already  re- 
corded, he  had  purchased  these  bonds  in  good  faith  and  for 
consideration.  The  first  ten  bonds  had  been  paid  before  Texas 
had  entered  a  protest,  and  when  Huntington  bought  his  bonds, 
there  was,  according  to  his  testimony,  no  protest  on  file.  When 
he  asked  for  payment,  however,  there  was  a  complaint  from  the 
State.  He  claimed  that  he  had  made  the  purchase  on  the  belief 
that  his  bonds  would  be  paid  as  had  been  those  of  Haas,  and 
that  he  had  taken  the  precaution  to  inquire  whether  there  was 
a  protest  against  such  payment. 

The  State  relied  entirely  upon  the  arguments  and  the  decree 
made  in  the  case  of  Texas  v.  White.12  It  was  claimed  that 
since  the  bonds  did  not  bear  the  indorsement  of  the  governor, 
the  title  of  the  State  had  not  divested,  that  these  bonds  were  a 
part  of  those  which  had  been  in  the  hands  of  White  and  Chiles. 
The  defense  challenged  these  facts,  and  claimed  that  there  was 
no  proof  that  these  bonds  had  been  purchased  by  the  original 
holders  after  maturity,  nor  that  the  transaction  had  been  other 
than  lawful  and  innocent.  It  was  argued  that  the  absence  of 
the  governor's  signature  was  not  proof  of  the  fact  that  the 
bonds  were  a  part  of  those  once  held  by  White  and  Chiles. 
There  had  been,  it  was  contended,  other  bonds  issued  without 
this  signature,  which  were  then  lawfully  held  by  innocent 
parties. 1:{  The  appeal  had  been  taken  on  the  ground  that  the 
charge  to  the  jury  in  the  lower  court  had  not  left  sufficient 
choice  and  discretion  in  deciding  this  point. 

The  opinion  was  delivered  by  Chief  Justice  Chase.  The 
court,  in  the  beginning,  considered  the  question  of  the  effeel 
of  the  governor's  indorsement,  and  that  of  the  act  repealing 
the  requirement.  In  the  latter  connection,  the  opinion  reads: 
"Bui    we  have  held  such  a  repealing  act   was  absolutely  void, 


"Merrick  and  Duranl  were  the  attorneys  for  the  State. 
1:1  J.  H.  Ashton  and  \V.  S.  Cox  represented  Huntington. 


96  Texas  v.  White 

and  that  the  title  of  the  State  could  in  no  case  be  divested." 
This  view  the  court  proceeded  to  modify  to  the  extent  that 
the  act  became  legal  and  operative  whenever  the  transference 
of  bonds  was  made  for  a  legitimate  and  innocent  purpose,  such 
as  for  the  support  of  eleemosynary  institutions,  and  not  in 
support  of  the  rebellion.  In  every  case  where  the  indorsement 
was  lacking,  the  validity  and  legality  of  the  alienation  depend- 
ed upon  the  legitimacy  of  the  object  and  purpose  of  the  trans- 
action. If  the  purpose  was  lawful,  the  transfer  was  legal  and 
the  repealing  act  valid.  With  this  change  of  interpretation  in 
mind,  the  court  held  that  the  charge  of  the  lower  court  was 
unfair  in  not  allowing  sufficient  latitude  in  the  judgment  of  the 
jury.     The  decision  was,  therefore,  reversed. 

Texas  v.  The  National  Bank  of  Washington141 

This  was  a  suit  for  the  possession  of  nineteen  bonds  then 
in  the  hands  of  the  bank  and  others,  including  the  cashier, 
whose  names  appeared  in  the  bill.  It  was  testified  by  the 
comptroller  of  the  treasury,  Mr.  Tayler,  that  in  his  opinion, 
based  upon  careful  calculation  from  certain  papers  in  his  office, 
these  bonds  were  a  part  of  those  once  in  the  possession  of 
White  and  Chiles.  This  was  also  the  opinion  of  Judge  Pas- 
chal. These  men  did  not,  and  apparently  could  not,  say 
definitely,  however,  that  they  knew  that  the  bonds  had  been 
transferred  by  the  Military  Board.  The  case  of  the  State 
rested  upon  this  evidence  and  upon  the  fact  that  the  bonds 
were  unindorsed.  The  defense  contended  that  the  testimony 
of  Tayler  and  Paschal  was  mere  opinion  and  no  evidence. 
It  was  argued  that  the  absence  of  the  governor's  indorsement 
was  not  proof  of  a  lack  of  title  on  the  part  of  the  holder.  It 
was  clearly  established  that  certain  bonds  issued  to  the  South- 
ern Pacific  Railroad,  one  hundred  and  forty-eight  in  number, 
had  not  been  so  indorsed.  The  State  had  not  been  consistent 
in  making  this  requirement,  and  some  thirteen  acts  were  cited 
in  which  the  requirement  was  not  even  mentioned  and  ap- 


14  20  Wallace,  72.     This   also  was  an   appeal   from  the  District  of 
Columbia  courts.     Decided  in  1873. 


Subsequent  Litigation  97 

parently  not  observed  in  the  execution  of  the  acts.  It  was 
pointed  out,  furthermore,  that  no  one  knew  definitely  the 
numbers  of  the  bonds  delivered  to  White  and  Chiles. 

The  opinion  of  the  court  was  delivered  by  Justice  Miller. 
The  case  of  the  complainants  rested  upon  the  assumption  that 
the  bonds  had  once  been  in  the  hands  of  White  and  Chiles, 
thus  having  all  the  taint  attendant  upon  that  fact.  In  the  face 
of  the  denial  of  the  accuracy  of  this  allegation  by  the  defen- 
dants, the  court  held  that  Texas  must  establish  it  beyond  doubt. 
The  court  considered  that  the  evidence  adduced  to  prove  this 
contention  was  of  a  very  unsatisfactory  sort,  and  altogether  in- 
competent for  the  purpose.  "In  short,"  it  was  said,  "the  testi- 
mony on  this  branch  of  the  subject  is  an  absolute  failure."15 

The  opinion  of  the  court  presented  a  very  interesting  and 
exceedingly  illuminating  treatment  of  the  legal  effect  of  the 
governor's  indorsement.  Speaking  of  the  entire  controversy 
on  this  point  and  of  the  view  taken  by  Chief  Justice  Chase, 
the  court  said : 

It  is  true  that  in  the  first  of  these  cases  the  eminent  judge  who 
delivered  the  opinion,  in  addition  to  deciding  that  bonds  were 
overdue  when  delivered  to  White  and  Chiles,  and  for  that 
reason  subject  to  an  inquiry  as  to  the  manner  in  which  they 
had  obtained  possession  of  them,  gave  an  additional  reason 
why  defendants  could  not  hold  them  as  bona  fide  purchasers, 
that  they  had  not  been  indorsed  by  the  governor  as  was  re- 
quired by  the  statute  of  the  State  of  Texas.  .  .  .  All  of 
this,  however,  was  unnecessary  to  the  decision  of  that  case, 
and  the  soundness  of  the  proposition  may  be  doubted. 

The  celerity  with  which  the  finding  of  the  lower  court  was  re- 
versed very  clearly  demonstrated  that  the  "proposition"  was 
no  longer  considered  sound.  This  was  a  frank  admission  that 
Chief  Justice  Chase  had  been  in  error  in  assigning  so  much 
force  to  the  statutory  requirement  of  the  governor's  signature. 
The  court  held  that  the  opinion  in  the  case  of  Huntington  v. 
Texas  governed  this  controversy.  The  modification  of  the 
earlier  views  was  reaffirmed  by  the  court,  and  on  these  grounds 


"20  Wallace,  82. 
7 


98  Texas  v.  White 

the  case  was  reversed  and  directions  were  given  for  the  dis- 
missal of  the  bill. 

In  an  opinion  of  considerable  length  and  great  power  of 
reasoning,  Justice  Swayne  concurred  in  the  decision,  but  sub- 
mitted reasons  slightly  different  from  those  of  the  majority. 
He  went  much  farther  than  the  court  regarding  the  effect  of 
the  act  repealing  the  requirement  of  the  indorsement  of  the 
governor.  This  act,  he  said,  was  an  ordinary  piece  of  legis- 
lation. "If  it  had  in  view  the  promotion  of  the  rebel  cause, 
it  was  too  remote  from  that  end,  and  its  tendency  too  indirect 
to  render  it  fatally  liable  to  that  objection.  The  repeal  put  an 
end  to  the  restriction."  He  went  on  to  say  that  the  original 
law  had  no  legal  effect  upon  the  title  of  the  bona  fide  holder. 

In  re  CJiileslc' 
This  matter  was  the  result  of  the  introduction  of  a  motion 
in  the  Supreme  Court  for  a  rule  on  Chiles  to  show  cause  why 
he  should  not  be  adjudged  guilty  of  contempt  of  court  for 
having  violated  the  decree  in  the  case  of  Texas  v.  White.  The 
decree,  it  will  be  remembered,  had  enjoined  the  defendants 
from  making  any  claim  to  the  bonds  mentioned  in  the  bill  in 
that  suit.  It  will  also  be  recalled  that  there  were  two  sets  of 
bonds  mentioned  in  the  original  bill,  namely,  those  actually 
turned  over  to  White  and  Chiles  by  the  Military  Board  and 
those  which  were  in  England  in  the  possession  of  the  firm  of 
Droege  &  Company.  Of  this  last  group,  the  bill  had  referred  to 
the  seventy-six  bonds  which  were  sold  to  White  and  Chiles  ac- 
cording to  the  contract.  Chiles  had  not  relinquished  his  claim  to 
these  bonds  although  it  seemed  to  have  been  invalidated  by  the 
decision  in  Texas  v.  White.  He  had,  at  several  times,  notified 
Droege  &  Company  of  his  ownership,  and  had  stated  his  in- 
tention of  reclaiming  them  by  legal  measures  in  the  English 
courts.  Finally,  on  July  17,  1874,  he  wrote  to  this  firm,  re- 
peating the  statement  of  his  right  to  the  seventy-six  bonds,  and 
asserting  his  intention  of  instituting  an  injunction  suit  to  pre- 
vent the  disposal  of  them  to  any  other  party.  When  this  letter 
became  known,  the  Texas  agent  appeared  before  the  Supreme 


;22  Wallace,  157. 


Subsequent  Litigation  99 

Court  and  made  the  motion  already  noticed.  In  answer  to  the 
charges  therein  preferred  against  him,  Chiles  admitted  that  he 
had  made  the  claim  of  ownership,  and  stated,  furthermore, 
that  he  intended  to  secure  his  rights  by  legal  measures.  He 
denied,  however,  that  he  was  guilty  of  any  contempt  of  court, 
or  that  he  was  endeavoring  to  nullify  and  thwart  the  injunc- 
tion imposed  upon  him  by  the  court  in  the  earlier  case.  On  the 
contrary,  he  maintained  that  his  assertion  of  right  to  the  bonds 
was  based  upon  grounds  other  than  those  denounced  in  the 
decree.  His  present  claim  was  founded  on  a  contract  made 
with  the  Military  Board  on  March  4,  1865, — a  contract  which 
was  separate  and  distinct  from  that  made  previously  to  which 
White  and  Chiles  had  been  parties  on  one  side.  In  the  later 
contract,  Chiles  had  not  been  associated  with  White.  The 
decree  had  annulled  the  contract  between  the  board  and  White 
and  Chiles,  but  it  had  had  no  effect  upon  the  later  one,  for 
the  court  could  not  impeach  a  contract  which  had  not  been 
mentioned  in  the  bill.  The  second  contract,  moreover,  was 
not  operative  until  the  first  had  been  vacated  or  annulled ;  the 
decree  having  declared  the  first  contract  void,  the  other  be- 
came effective.  As  to  the  idea  that  Chiles  was  in  contempt  of 
court,  the  defense  argued  that  the  law  of  injunctions  was  not 
framed  to  prevent  a  person  from  claiming  property  either  oral- 
ly or  in  writing.  The  decree  in  Texas  v.  White  had  called 
into  active  life,  the  contract  of  March  4,  which  had  hitherto 
been  in  abeyance,  and  Chiles  had  made  known  his  rights  under 
it, — a  fact  which  had  no  necessary  bearing  upon  the  decree. 
It  was  then  denied  that  the  court  had  the  right  to  pass  upon 
money  or  bonds  held  by  a  foreign  subject  and  located  in  a 
foreign  country. 

Messrs.  Merrick  and  Durant  for  the  complainant  charged 
that  Chiles  was  striving  to  overthrow  the  decision  in  Texas  v. 
White,  that  he  was  preventing  the  State  from  deriving  the  just 
benefits  of  that  victory,  and  that  he  was  violating  the  decree. 
They  demanded  that  the  court  should  order  Chiles  to  cease  his 
illegal  practices,  and  that  lie  should  be  constrained  to  conve) 
to  the  State  in  writing  whatever  claim  he  might  have  I"  the 
bonds. 


100  Texas  v.  White 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court.  "It 
would  be  to  trifle,"  said  the  justice,  "with  the  court  to  make  a 
proceeding  in  equity,  designed  to  give  full  and  final  relief  and 
to  administer  complete  justice,  to  depend  upon  the  skill  and 
jugglery  by  which  a  defendant  might  conceal  some  part  of  his 
defense  to  that  suit  until  it  was  decided  against  him,  and  set  it 
up  as  an  excuse  for  disobeying  the  final  decree  of  the  court, 
or  hold  it  out  as  the  basis  of  another  suit  for  the  title  and 
possession  of  the  same  bonds."  The  existence  of  a  new  con- 
tract was,  therefore,  an  unsubstantial  basis  for  the  claim. 

The  court  held  that  the  decree  was  plain.  It  had  declared 
the  contract  conveying  the  bonds  to  White  and  Chiles  void, 
and  had  enjoined  them  from  setting  up  any  claim  to  the  bonds 
mentioned.  The  assertion  of  claim  was  not  limited  to  legal 
action,  and,  consequently,  Chiles  was  again  in  error.  The 
court,  therefore,  declined  to  be  governed  by  the  fine  distinc- 
tions which  the  counsel  for  Chiles  had  sought  to  draw  from 
the  law  of  injunctions.  The  decree  was  intended  to  prevent 
any  further  interference  with  the  rights  of  Texas  and  any  ob- 
struction to  the  recovery  of  the  bonds  specified  in  the  bill. 

The  court  decided  that  the  holders  of  bonds  in  the  United 
States  could  be  forced  to  restore  them  to  the  State  of  Texas, 
but  this  was  as  far  as  the  court's  assistance  could  extend. 
The  court  could  enjoin  a  domestic  holder  from  setting  up  a 
claim  to  bonds  deposited  in  a  foreign  country.  This  Chiles,  in 
defiance  of  the  spirit  and  intent  of  the  decree,  had  done,  and 
the  court  considered  him  to  be  in  contempt  of  its  authority. 
For  this  offense,  he  was  fined  $250  and  costs.  The  court  de- 
clined to  order  him  to  make  over  his  claim  to  the  State  of 
Texas.17 


17  This  is  one  of  the  most  famous  contempt  cases,  and  has  been 
cited  repeatedly  for  precedent.  For  another  interesting  case  arising 
out  of  the  controversy  over  the  Texas  indemnity  bonds  and  in  which 
Chiles  was  involved,  see  21  Wallace,  488.  The  Supreme  Court  later, 
in  the  interesting  case  of  United  States  v.  Morgan  (Morgan  and 
Another  v.  United  States;  United  States  v.  Manhattan  Savings  Insti- 
tute; von  Hoffman  and  Another  v.  United  States)  had  occasion  to  re- 
view some  of  the  leading  points  of  law  involved  in  Texas  v.  White  and 
the  other  cases  mentioned  in  this  chapter.     See  113  U.  S.,  476-506. 


CHAPTER  V 

BIBLIOGRAPHY 

I.  Primary  Sources  and  Documents: 
United  States  Supreme  Court  Reports. 

Texas  Supreme  Court  Reports,  especially  25  Texas  (Sup- 
plement ) . 

Congressional  Globe. 

File  Copy  of  Briefs,  United  States  Supreme  Court,  1868- 
1876. 

Gammel,  Laws  of  Texas. 

Opinions  of  the  Attorney-Generals  of  the  United  States. 

Official  Records  of  the  Union  and  Confederate  Armies  and 
Navies  in  the  War  of  the  Rebellion. 

Paschal,  G.  W.,  Digest  of  the  Laws  of  Texas,  1870. 

Records  of  the  Supreme  Court. 

Reports  of  the  Texas  Comptroller  of  Public  Accounts, 
1850-1878. 

Reports  of  the  United  States  Comptroller  of  the  Treasury. 

Richardson,  J.  D.,  Messages  and  Papers  of  the  Presidents 
(10  vols.)  1896-97. 

The  Federalist  (Lodge,  Ed.),  1889. 

United  States  Executive  Documents. 

United  States  Statutes  at  Large. 

II.  Works  on  Texas  History  : 

Garrison,  George  P.,  Texas:  A  Contest  of  Civilization 
(American  Commonwealth  Series).     1903. 

,    Westivard    Extension    (American    Nation 

Series,  XVII),   1906. 

Gouge,  W.  M.,  Fiscal  History  of  Texas.     1852. 

Lubbock,  F.  R.,  Six  Decades  in  Texas.     1900. 

Ramsdell,  C.  W.,  Reconstruction  in  Texas.     1910. 

Smith,  Justin  S.,  Annexation  of  Texas.     1911. 

Southwestern  Historical  Quarterly. 

Wooten,  D.  G.  (Editor),  A  Comprehensive  History  of 
Texas.     (2  vols.)     1899. 


102  Texas  v.  White 

III.  Works  on  Constitutional  Law  : 

Cooley,  T.  M.,  Constitutional  History  of  the  United  States 
as  seen  in  the  Development  of  American  Lazv.     1899. 

,  Constitutional  Law. 

,  A  Treatise  on  the  Constitutional  Limitations 

which  rest  upon  the  Legislative  Power  of  the  States  of  the 
American  Union.     (3rd  ed.)     1890. 

McClain,  Emlin,  Cases  on  Constitutional  Law.     1909. 

Story,  J.,  Commentaries.     1833. 

Thayer,  J.  B.,  Cases  on  Constitutional  Lazv.  (3  vols.) 
1894-5. 

Thorpe,  F.  N.,  Constitutional  History  of  the  United  States. 
(3  vols.)     1901. 

Willoughby,  W.  W.,  The  Constitutional  Lazv  of  the  United 
States.     (2  vols.)     1910. 

,  The  American  Constitutional  System.  1904. 

,  An  Examination  of  the  Nature  of  the  State 

(rev.  ed.)     1903. 

IV.  General  : 

Beard,  C.  A.,  American  Government  and  Politics  (rev.  ed). 
1914. 

Blaine,  J.  G.,  Twenty  Years  of  Congress.  (2  vols.)  1884- 
1886. 

Brownson,  O.  A.,  The  American  Republic.    1866. 

Burgess,  J.  W.,  Middle  Period,  1817-1858.  (American 
History  Series,  vol.  IV).     1901. 

,  Reconstruction  and  the  Constitution,  1866- 

76.     (American  History  Series,  vol.  VII).     1909. 

,  Political  Science  and  Constitutional  Law.  (2 

vols.)  1890. 

,  The  American  Commonwealth.     {Political 

Science  Quarterly,  vol.  1.)     1886. 

Calhoun,  John  C,  Works.  (Edited  by  R.  K.  Cralle.  6 
vols.)     1853-1855. 

Dunning,  W.  A.,  Bssays  on  the  Civil  War  and  Reconstruc- 
tion (rev.  ed.)     1904. 


Bibliography  103 

,    Reconstruction :    Political    and    Economic. 

(American  Nation  Series,  Vol.  22)   1907. 

Fleming,  W.  L.,  Documentary  History  of  Reconstruction. 
(2  vols.)     1906-07. 

Garner,  J.  W.,  Introduction  to  Political  Science.     1910. 

Hart,   A.   B.,  Salmon   P.    Chase.      (American   Statesman 
Series,  vol.  28).    1899. 

Hurd,  J.  C,  Law  of  Freedom   and  Bondage.      (2  vols.) 
1858-1862. 

,  The  Theory  of  our  National  Existence,  as 

Shoivn  by  the  Action  of  the  Government  of  the  United  States 
Since  1861.     1881. 

Lincoln,  Abraham,  Works.     (Edited  by  John  G.  Nicolay 
and  John  Hay.    2  vols.)     1902. 

Lowell,  A.  L.,  Essays  on  Government.     1892. 

Johnson,  B.  T.,  The  Chase  Decisions.     1876. 

Madison,  James,  Works.     (Edited  by  Gaillard  Hunt.   11 
vols.)     1900-1910. 

McCarthy,  C.  H.,  Lincoln's  Plan  of  Reconstruction.     1901. 

Merriam,  C.  E.,  A  History  of  American  Political  Theories. 
1903. 

Rhodes,  J.  F.,  History  of  the  United  States  Since  the  Con- 
promise  of  1850.      (7  vols.)     1896-1906. 

The  South  in  the  Buildi)ig   of  the  Nation.      (13   vols.) 
1909-13. 

Webster,  Daniel,  Works.     (Edited  by  J.  W.  Mclntire.     18 
vols.)     1903. 

Wilson,  W.,  An  Old  Master  and  Other  Essays.     1893. 

V.     Newspapkks  and  Contemporary   Literature: 

American  Annual  Cyclopedia,  1868-1876. 

The  New  York  Herald. 

The  New  York  Times. 

The  New  York  Tribune. 

The  New  York  World. 

The  Tozvnsend  Library  of  Columbia  University,  (Vol.  61). 

Texas    Annexation    Pamphlets,    in    Columbia    University 
Library. 


VITA 

William  Whatley  Pierson,  Jr.,  was  born  at  Brundidge, 
Alabama,  November  30,  1890.  His  educational  record  was 
as  follows :  B.  Ph.,  State  Normal  College,  Troy,  Alabama, 
1908;  A.  B.,  University  of  Alabama,  1910;  A.  M.,  Ibid.,  1911  ; 
A.  M.,  Columbia  University,  1912.  In  1910-1911  he  was  teach- 
ing fellow  in  English  at  the  University  of  Alabama,  and  from 
1911  to  1913  he  was  a  graduate  student  at  Columbia  Univer- 
sity in  American  and  Modern  European  History  and  Econom- 
ics. He  had  courses  under  Professors  Dunning,  Osgood, 
Shepherd,  Shotwell,  Sloane,  Moore,  Seligman,  Seager,  and 
Simkhovitch  and  attended  seminar  in  American  History  under 
Professor  Dunning.  In  1914-1915  he  was  assistant  in  History 
and  instructor  in  Extension  Teaching  at  Columbia  University, 
and  in  1915-1916  he  was  instructor  in  History  at  the  Uni- 
versity of  North  Carolina. 


0  3  - 


This  book  is  DUE  on  the  last  date  stamped  below 


5T2' 


JAN  2  9  196* 


REID  BOOK  BOX 


Form  L-9-15m-7,'32 


UC  SOUTHERN  REGIOMAL  LIBRARY  Fir 


LITY 


AA    000  555  817    6 


(  - 


I 


o  = 


PLEASE  DO   NOT    REMOVE 
THIS    BOOK  CARD    ] 


^•LIBRARY^ 


%0JIW3JO^ 


University  Research  Library 


i 


RNTA 


